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LECTURES 


/U^^ 


CONSTITUTIONAL    LAW, 


FOR    THE    USE    OF    THE 


LAW    CLASS 


UNIVERSITY   OF   VIRGIiNIA. 


BY  HENRY  ST.  GEORGE  TUCKER, 
PROFESSOR. 


RICHMOND: 

PRISTED    BY    SHEPHERD    AND    COLIN". 


1843. 


T 
U43 


It 


LECTURES 


CONSTITUTION  OF  THE  UNITED  STATES. 


LECTURE  I. 

Having  presented  to  you,  young  gentlemen,  in  some 
former  lectures,  my  views  of  the  character  and  principles 
of  the  several  forms  of  government,  and  particularly  of  the 
representative  and  confederate,  we  will  now  proceed  to  a 
more  accurate  examination  of  our  own  political  system, 
which  has  been  professedly  constructed  upon  the  com- 
bined principles  of  popular  representation  and  an  union  of 
sovereign  and  independent  states.  I  confidently  believe 
that  these  enquiries  will  result  in  the  conviction  that  whilst 
we  have  adopted  a  system  without  a  prototype,  we  shall, 
nevertheless,  find  it  eminently  calculated  to  protect  us 
from  foreign  aggression,  and  to  secure  the  rights  of  life, 
liberty  and  property  to  every  citizen  of  those  free  and  hap- 
py republics. 

Before  we  proceed  however  with  our  task,  it  may  not  be 
improper  to  recall  to  your  recollections  certain  points  of 
our  national  history  with  which  you  are  doubtless  familiar, 
but  which  bear  too  materially  upon  our  subject  to  be  passed 
at  least  without  a  reference. 

The  people  of  the  United  States,  as  you  all  are  aware, 
are  composed  of  the  descendants  of  those  subjects  of  the 
British  crown,  who,  from  various  motives,  left  within  the 
two  last  centuries  their  native  isles  and  settled  themselves 
upon  this  wild  and  desert  continent.  It  is  a  principle  of 
British  law  that  if  an  uninhabited  country  is  discovered 
and  planted  by  British  subjects,  the  English  laws  are  im- 
mediately in  force  there;  for  the  law  is  the  birthright  of 


4  LECTURES    ON 

every  subject :  so  that  wherever  they  go  they  carry  their 
laws  with  them,  and  the  new  found  country  is  governed  by 
them. (a)  The  proposition  however  must  be  considered  as 
limited  by  their  applicability  and  their  consistency  with  the 
local  and  political  circumstances  in  which  the  colonists  are 
placed;  and,  moreover,  by  those  changes  which,  in  the 
lapse  of  time  may  be  made  by  that  power  which  exercises 
the  legislative  authority  over  them. 

Such  seems,  indeed,  to  be  the  natural  course  of  things, 
though  the  notion  has  been  derided  by  some  of  our  most 
distinguished  men. (6)  It  could  not  well  have  been  other- 
wise. If  we  imagine  a  body  of  emigrants  settling  in  An 
uninhabited  country,  we  must  suppose  them  to  be  under 
the  government  of  some  laws.  Bodies  of  men  cannot  sub- 
sist without  them.  And  if  they  must  have  some,  what  so 
natural  as  their  recognition,  even  without  adoption,  of  that 
system  under  which  they  were  born,  and  to  which  they  have 
been  accustomed  ?  Under  such  circumstances,  the  laws  of 
the  fatherland,  so  far  as  they  might  be  applicable,  would  be 
looked  to  as  the  rule  of  civil  conduct,  commanding  what 
is  right  and  prohibiting  what  is  wrong.  This  would  be 
the  natural  course  of  things,  if  the  bond  which  united  the 
emigrants  to  the  land  of  their  birth  was  severed  forever. 
It  would  have  been  the  case  with  our  forefathers,  if,  when 
they  left  the  British  shores,  they  could  have  fled  beyond 
the  reach  of  the  keen  eye  and  powerful  arm  of  the  mo- 
narch who  claimed  them  as  his  subjects.  But  this  was  not 
their  case.  They  might  have  exclaimed  in  the  language 
of  the  Psalmist,  "  If  I  take  the  wings  of  the  morning  and 
dwell  in  the  uttermost  parts  of  the  sea,  even  there  shall  thy 
hand  lead  me  and  thy  right  hand  shall  hold  me." 

This  indeed  was  eminently  the  case  with  the  British  sub- 
ject. Leashed  to  the  footstool  of  the  British  crown,  no 
time  nor  distance  could  dissolve  the  tie.  The  law  of  alle- 
giance bound  him  wherever  he  might  go,  and  "  he  dragged 
at  each  remove  a  lengthening  chain."  It  was  the  principle 
of  the  law  of  that  land  that  neither  time  nor  distance 
could  impair  its  obligation.  Allegiance  was  a  quality  or 
duty,  and  as  is  said  in  the  (juaint  language  of  a  learned  ap- 

(rt)l  Black.  Com.  107. 
(i)  4  Jeflf.  Corr.  178. 


CONSTITUTIONAL    LAW.  O 

prentice  in  Plowden,  it  was  held  to  be  ridiculous  to  at- 
tempt to  force  the  predicament  of  quality  into  the  predica- 
ment of  ubi.  Wherever,  therefore,  the  British  power 
reached,  the  British  emigrant  would  be  governed  by  its 
laws ;  and  wherever  he  felt  its  restraints,  or  was  sensible 
of  its  trammels,  he  would  naturally  claim  as  a  set-off  to 
its  burdens,  a  full  title  to  its  privileges  and  protection. (c) 
Thus  it  is  that  in  the  declaration  of  rights  drawn  up  by  the 
continental  congress  of  1774,  we  find  it  declared,  "that 
our  ancestors,  who  first  settled  these  colonies,  were,  at  the 
time  of  their  emigration  from  the  mother  country,  entitled 
to  all  the  rights,  liberties  and  immunities  of  free  and  natu- 
ral born  subjects  within  the  realm  of  England." 

But  the  common  law  thus  brought  by  the  colonists  was,  ^.i^;^ 
it  must  be  observed,  very  different  at  the  periods  of  the 
different  settlements.  The  common  law  as  existing  at  the 
settlement  of  Virginia  was  very  much  modified  before  the 
settlement  of  Georgia  in  the  reign  of  George  the  second; 
so  that  there  never  has  been  in  the  various  states  the  same 
system  of  common  law  in  all  its  ramifications,  though  its 
general  character  throughout  the  whole  was  very  much 
the  same,  except  so  far  as  it  had  been  altered  by  statutes 
enacted  by  the  legislatures  of  the  respective  colonies.  For 
very  early  after  the  respective  settlements,  provincial  as- 
semblies were  established,  composed  of  the  representatives 
of  the  freeholders  and  planters,  with  whom  were  associated 
the  governor  and  council,  the  last  of  whom  composed  an 
upper  house,  while  the  governor  was  invested  with  the 
power  of  a  negative,  and  of  proroguing  and  dissolving 
them.  Thus  constituted  they  soon  acquired  a  code  of 
their  own,  and  introduced  very  large  and  important  varia- 
tions from  the  common  law  in  all  its  branches;  so  that  at 
the  date  of  the  revolution,  and  still  more  at  the  date  of  the 
present  constitution  of  the  United  States,  the  systems  of 
jurisprudence  of  the  several  states  were  so  dissimilar  that 
it  would  have  been  iinpossible,  even  if  had  been  desired,  to 
have  adopted  the  common  law  as  the  general  law  of  the 
United  States  as  such. 

The  power  of  legislation  thus  exercised  by  the  colonial 
legislatures,  with  the  restrictions  necessarily  arising  from 

(c)  See  Cond.  Rep.  204,  211,  212;  10  East.  282,  288,  289. 
I* 


6  LECTURES    ON 

their  dependence  on  Great  Britain  was  not  without  con- 
trol :  for  in  all  the  colonies,  except  Maryland,  Connecticut 
and  Rhode  Island,  the  king  possessed  the  power  of  abro- 
gating the  laws,  and  they  were  not  final  in  their  authority 
until  they  had  passed  under  his  review.  (1  Story  158.)  The 
colonies  indeed  were  looked  upon  as  dependencies  of  the 
British  crown  and  owing  allegiance  thereto  ;  the  king  being 
their  supreme  and  sovereign  lord.  (1  Vez.  444 ;  Vaugh. 
R.  300,  400  ;  Shower's  Pari.  Ca.  30,  &c.)  From  him  the 
colonial  assemblies  were  considered  as  deriving  their  ener- 
gies, and  it  was  in  his  power  to  assent  or  dissent  to  all  their 
proceedings.  In  regard  to  the  authority  of  parliament,  the 
government  of  Great  Britain  maintained  the  right  of  that 
body  to  bind  the  colonies  in  all  cases  whatsoever ;  though 
it  was  admitted  that  they  were  bound  by  no  act  of  parlici- 
ment  in  which  they  were  not  expressly  named.  In  America 
different  opinions  were  entertained  on  the  subject  at  dif- 
ferent times  and  in  different  colonies.  The  power  of  taxa- 
tion however  was  resisted  from  a  very  early  period;  (1 
Story  1'72,  3,  4,)  and  the  allegiance  to  the  crown  on  the 
one  hand,  and  the  right  of  exemption  from  taxes  unless  im- 
posed by  themselves  on  the  other,  are  equally  asserted  in  a 
declaration  of  the  colonies  assembled  at  New  York  in  Oc- 
tober 1765.  (1  Story  175.)  And  although  in  the  same 
paper,  the  power  of  parliament  to  bind  the  colonies  by 
legislation  was  admitted,  yet  upon  the  same  principles  on 
which  the  right  of  taxation  was  denied,  the  people  of  the  co- 
lonies at  length  settled  down  upon  the  broad  principle,  that 
parliament  had  no  power  to  bind  them  by  its  laws,  except  by 
such  as  might  be  enacted  for  the  regulation  of  commerce 
and  of  the  general  concerns  of  the  empire.  While  alle- 
giance to  the  crown  was  thus  admitted,  the  authority  of 
parliament  to  legislate  in  matters  of  taxation  and  internal 
policv  was  denied ;  and  even  the  declaration  of  indepen- 
dence distinctly  evinces  by  its  silence  as  to  parliament, 
that  the  authority  to  which  they  traced  their  wrongs,  and 
whose  action  upon  them  was  recognized  was  the  king 
alone,  until  the  power  of  taxation  was  asserted  by  parlia- 
ment. This  assertion  and  the  wrongs  of  the  crown  at 
length  brought  revolution,  and  as  soon  as  its  first  steps 
were  taken,  and  even  before  a  final  separation  was  in  con- 
templation, a  close  union  and  co-operation  of  all  the  co- 


'  CONSTITUTIONAL    LAW.  7 

lonies  were  perceived  to  be  essential  to  the  successful  vin- 
dication of  their  rights  and  liberties  as  British  subjects. 
A  congress  of  delegates  from  the  several  colonies  accord- 
ingly assembled  first  in  1774,  and  afterwards  in  1775,  and 
by  them  the  necessary  measures  were  adopted  for  the  ge- 
neral defence.  We  shall  hereafter  have  occasion  to  con- 
sider whether  this  body  was  to  be  looked  upon  as  repre- 
senting one  people  or  thirteen  distinct  communities.  But 
in  this  hasty  sketch  of  the  progress  of  the  states  to  their 
present  condition,  it  seems  only  necessary  to  say,  that  the 
congress  of  1774  considered  itself  as  invested  with  power 
to  concert  measures  for  redress  of  grievances,  and  that 
those  of  1775  and  1776  were  clothed  with  yet  more  ample 
powers;  their  commissions  being  sufficiently  broad  to  em- 
brace the  right  to  pass  measures  of  a  national  character 
and  obligation.  Anticipating  the  eager  spirit  of  the  peo- 
ple in  resistance  of  British  oppression  and  claims  of  do- 
minion, they  took  measures  of  national  defence  ;  prohibited 
intercourse  and  trade  with  Great  Britain,  and  raised  an 
army  and  navy  and  authorized  hostilities.  They  also  raised 
and  borrowed  money;  emitted  bills  of  credit;  established 
a  post  office,  and  authorized  captures  and  condemnations 
of  prizes  in  prize  courts,  with  a  reserve  of  appellate  ju- 
risdiction to  themselves.  At  length,  by  the  same  body, 
the  United  States  were  declared  independent  in  the  most 
gloomy  moments  of  the  contest,  and  they  continued  to  ex- 
ercise the  powers  of  a  general  government  under  a  loose 
and  irregular  authority,  until  the  adoption  of  the  articles 
of  confederation  by  some  of  the  states  in  1778.  Those 
articles  gave  indeed  a  more  firm  and  decided  character  to 
the  government,  and  sustained  by  patriotism  and  the  ar- 
dour of  the  conflict,  bore  us  at  length  safely  through  our 
arduous  struggle  with  one  of  the  most  powerful  nations  of 
the  globe.  On  the  termination  of  the  war,  the  pressure  of 
which,  like  the  pressure  of  the  superincumbent  atmosphere, 
gave  a  principle  of  solidity  to  our  institutions  which  did 
not  properly  belong  to  them,  every  thing  became  relaxed. 
The  bands  which  united  us  seemed  loosened,  and  all  per- 
ceived how  important  it  was  they  should  be  tightened. 
Years  however  passed  away  before  the  submission  of  the 
plan  of  a  new  constitution  to  the  people,  and  the  adoption 
of  it  by  them.     No  sooner  did  it  go  into  operation  than  it 


8  LECTURES    ON  ' 

placed  the  states  of  the  Union  upon  an  elevation  which 
even  the  most  sanguine  could  scarcely  have  anticipated. 
We  may  reiterate  the  exclamation  which  Mr.  Blackstone 
has  borrowed  from  father  Paul,  and  terminate  our  grateful 
acknowledgments  to  the  giver  of  all  good  for  our  blessed 
constitution,  by  the  fervent  ejaculation  "  Esto  perpetua." 

After  this  rapid  sketch  let  us  now  proceed  to  look  more 
closely  into  the  nature  and  character,  not  only  of  our  in- 
stitutions, but  of  the  relation  which  the  several  states  have 
borne  to  each  other,  whether  considered  as  colonies,  or  as 
brethren  fighting  shoulder  to  shoulder  under  the  same  ir- 
regular government,  or  as  members  of  a  great  and  organized 
confederacy,  or  finally  as  constituting  the  great  and  happy 
Union  under  which  we  live,  protected  against  enemies 
abroad,  and  carefully  secured  from  the  danger  of  tyranny 
at  home. 

In  the  history  of  the  two  great  parties  which  have  di- 
vided the  people  of  the  United  States  ever  since  the  adop- 
tion of  the  present  constitution,  a  constant  struggle  is  ob- 
servable in  relation  to  the  character  of  the  government. 
The  federal  party (c?)  (so  called  by  a  strange  perversion 

(d)  Judge  Story  tells  us:  §  286.  In  this  state  of  things  the  em- 
barrassments of  the  country  in  its  financial  concerns,  the  general 
pecuniary  distress  among  the  people  from  the  exhausting  opera- 
tions of  the  war,  the  total  prostration  of  commerce,  and  the  lan- 
guishing unthriftincss  of  agriculture,  gave  new  impulses  to  the 
already  marked  political  divisions  in  the  legislative  councils.  Ef- 
forts were  made,  on  one  side,  to  relieve  the  pressure  of  the  public 
calamities  by  a  resort  lo  the  issue  of  paper  money,  to  tender  laws, 
and  instalment  and  other  laws,  having  for  their  object  the  post- 
ponement of  the  payment  of  private  debts,  and  a  diminution  of 
the  public  ta.xos.  On  the  other  side,  public  as  well  as  private  cre- 
ditors became  alarmed  from  the  increased  dangers  to  property,  and 
the  increased  facility  of  perpetrating  frauds  to  the  destruction  of  all 
private  faith  and  credit.  And  tiiey  insisted  strenuously  upon  the 
establishment  of  a  government,  and  system  of  laws,  which  should 
preserve  the  public  f.iith,  and  redeem  the  country  from  that  ruin, 
which  alwa^'s  follows  upon  the  violation  of  the  principles  of  jus- 
tice, and  the  moral  obligation  of  contracts.  "  At  length,"  we  are 
told,*  "  two  great  parties  were  formed  in  every  state,  which  were 
distinctly  marked,  and  whicli  pursued  distinct  objects  with  syste- 
matic arrangement.  The  one  struggled  with  unabated  zeal  for  the 
exact  observance  of  public  and  private  engagements.  The  distresses 

*  5  Marshall's  Ut-.  of  Wasliington,  83. 


COI^STITUTIONAL    LAW.  9 

of  the  use  of  the  terms)  have  always  been  inclined  to  re- 
present the  United  States  as  constituting  ojie  people,  instead 
of  a  confederacy  of  states ;  while  their  opponents  (for- 
merly called  anti-federalists,  but  more  recently  known  as 
the  democratic  or  republican  party)  have  ever  strenuously 
contended  that  the  constitution  was  a  compact,  or  the  re- 
sult of  a  compact  between  the  states;  who  retain  their  so- 
vereignty, and  all  the  rights  of  sovereignty,  which  they 
have  not  expressly  transferred  to  the  federal  government. 
Thus  we  find  Mr.  Webster,  the  great  champion  of  the  fe- 
deral party,  pronouncing,  (and  judge  Story  once,  but  no 
longer,  supposed  to  be  of  the  states  right  party,  quotes  him 
with  approbation)  that  "  the  doctrine  that  the  states  are 
parties  to  the  constitution  is  refuted  by  the  constitution  it- 
self in  its  very  front.  It  declares  that  it  is  ordained  and  es- 
tablished by  the  people  of  the  United  States.  So  far  from 
saying  that  it  is  established  by  the  governments  of  the  se- 
veral states,  it  does  not  even  say  that  it  is  established  by 
the  people  of  the  several  states.  But  it  pronounces  that  it 
is  established  by  the  people  of  the  United  States  in  the 
AGGREGATE  ! !  Doubtless  the  people  of  the  several  states 
taken    collectively   constitute   the   people  of  the   United 

of  individuals  were,  they  thought,  to  be  alleviated  by  industry  and 
frugality,  and  not  by  a  relaxation  of  the  laws,  or  by  a  sacrifice  of 
the  rights  of  others.  They  were  consequently  uniform  friends  of 
a  regular  administration  of  justice,  and  of  a  vigorous  course  of 
taxation,  which  would  enable  the  state  to  comply  with  its  engage- 
ments. By  a  natural  association  of  ideas,  they  were  also,  with 
very  few  exceptions,  in  favour  of  enlarging  the  powers  of  the  fe- 
deral government,  and  of  enabling  it  to  protect  the  dignity  and 
character  of  the  nation  abroad,  and  its  interests  at  home.  The 
other  party  marked  out  for  itself  a  more  indulgent  course.  They 
were  uniformly  in  favour  of  relaxing  the  administration  of  justice, 
of  affording  facilities  for  the  payment  of  debts,  or  of  suspend- 
ing their  collection,  and  of  remitting  taxes.  The  same  course  of 
opinion  led  them  to  resist  every  attempt  to  transfer  from  their  own 
hands  into  those  of  congress,  powers,  which  were  by  others  deemed 
essential  to  the  preservation  of  the  Union.  In  many  of  the  states 
the  party  last  mentioned  constituted  a  decided  majority  of  the  peo- 
ple ;  and  in  all  of  them  it  was  very  powerful."  Such  is  the  lan- 
guage of  one  of  our  best  historians  in  treating  of  the  period  im- 
mediately preceding  the  formation  of  the  constitution  of  the  United 
States.* 

*  See  also  5  Marshall's  Life  of  Washington,  130,  131 


10 


LECTURES    ON 


States.  But  it  is  in  this  their  collective  capacity,  it  is,  as 
all  the  people  of  the  United  States  that  they  establish  the 
constitution."  (Webster's  Speeches,  pa.  430,  cited  1  Sto- 
ry 331,  2.)  Similar  opinions  are  delivered  in  Martin  v. 
Hunter,  1  Wheat.  324. 

The  foregoing  passage  is  cited  here,  not  for  the  purpose 
of  exposing  its  disingenuous  sophisms,  but  merely  to  pre- 
sent the  views  of  one  of  the  great  parties  of  the  country 
in  relation  to  our  federal  constitution.  It  is  their  favourite 
position  "  that  the  constitution  of  the  United  States  was 
ordained  and  adopted,  not  by  the  states  in  their  sovereign 
capacities,  but  emphatically,  as  the  preamble  declares  by 
the  people  of  the  United  States,  and  it  is  this  position 
which  it  behoves  every  lover  of  truth  and  of  the  rights  of  the 
states  most  vigorously  to  assail.  Its  advocates  indeed  have 
maintained  it  with  equal  earnestness  and  ability,  but  having 
been  foiled  on  some  eminent  occasions,  and  having  fallen 
from  power  in  no  small  degree  from  their  strenuous  main- 
tenance of  this  political  heresy,  one  of  the  most  distin- 
guished among  them  has  compiled  a  laborious  work  with 
a  view  to  sustain  it.  In  doing  this,  judge  Story  has  at- 
tempted to  fortify  himself,  by  shewing  that  the  people  of 
the  United  States  were  ahoays  one  people :  that  the  colo- 
nies themselves,  when  subjects  of  Great  Britain,  were  not 
distinct  and  separate  from  each  other,  but  were  one  people : 
that  during  the  revolutionary  struggle  they  were  still  one 
people  even  anterior  to  the  confederation :  that  the  decla- 
ration of  independence  treated  them  as  one  people,  and 
that  this  oneness  or  unity  particularly  distinguished  them 
in  "  ordaining  and  establishing  the  constitution  of  the 
United  States."  Such  is  the  general  tenor,  as  it  appears 
to  me,  of  judge  Story's  doctrine,  but  as  I  shall,  in  proceed- 
ing to  examine  it,  quote  his  very  language,  I  shall  have 
done  him  no  injustice,  if  what  I  have  just  said  does  not  re- 
present him  fairly.  Let  us  proceed  then  to  state  and  ex- 
amine his  several  positions. 

We  will  begin  with  the  colonies.  In  page  164,  judge 
Story  remarks  that  "  though  the  colonies  were  indepen- 
dent of  each  other  in  respect  to  their  domestic  concerns, 
they  were  not  wholly  alien  to  each  other.  On  the  contra- 
ry they  were  fellow  subjects,  and  for  many  pitrposes  one 
people.     Every  colonist  had  a  right  to  inhabit  if  he  pleased 


CONSTITUTIONAL    LAW.  11 

in  any  other, (c)  and,  as  a  British  subject,  was  capable  of 
inheriting  lands  by  descent  in  every  other  colony."  And 
he  proceeds  to  cite  Ch.  Jus.  Jay  to  the  same  point  "  that 
they  were  in  a  variety  of  respects  one  people." 

Let  us  then  enquire  whether  the  colonies  before  the  re- 
volution icere  justly  to  be  regarded  in  any  respect  or  for 
any  purpose  one  people.  I  propose  to  examine  this  ques- 
tion shortly,  according  to  the  views  of  the  statesmen  of  the 
times,  and  the  admissions  of  judge  Story  himself;  accord- 
ing to  the  nature  of  the  several  political  societies ;  accord- 
ing to  historical  facts,  and  upon  principle. 

First,  it  is  clear,  that  the  colonies  were  looked  upon  not 
as  constituting  part  even  of  the  body  politic  of  the  British 
government,  but  as  subject  to  it;  "  not  ?ls  part  of  the  mo- 
ther country,  but  as  distinct,  though  dependent  domi- 
nions." Such  is  the  language  of  Mr.  Blackstone  when 
speaking  of  these  very  colonies.  (Vol.  ],  107.)  So  even 
the  kingdom  of  Scotland,  after  the  union  of  the  two  crowns 
on  the  accession  of  James  I.  continued  an  entire,  separate 
and  distinct  kingdom  for  above  a  century ;  and  so  when 
judge  Blackstone  wrote,  Ireland  was  still  a  distinct,  though 
a  dependent  and  sid^ordinate  kingdom  (p.  99).  So  also  of 
Hanover,  though  it  has  the  same  king  that  sits  on  the  Bri- 
tish throne,  it  is  a  distinct,  independent  and  unconnected 
kingdom,  (p.  110.)(/) 

'Admitting  then  that  the  colonies,  though  the  subjects  of 
the  crown,  made  no  part  of  the  mother  country,  but  were 
DISTINCT,  though  dependent  dominions,  they  were  a  for- 
tiori DISTINCT  from  each  other  :  For  if  their  being  sub- 
ject to  the  authority  of  the  crown  of  England  did  not 
make  them  to  any  intent  one  people  with  England,  still 
less  could  they  be  one  people  with  other  states,  that  neither 
were  subject  to  them  nor  had  authority  over  them. 

(e)  "  It  never  was  considered,''  says  judge  Iredell,  "  that  before 
the  actual  signature  of  the  articles  of  confederation  a  citizen  of 
one  state  was  to  any  one  purpose  a  citizen  of  another.  He  was,  as  to 
all  substantial  purposes,  as  a  foreigner  to  their  forensic  jurispru- 
dence. If  rigorous  law  had  been  enforced,  perhaps,  he  might  have 
been  deemed  an  alien  without  an  express  provision  of  the  state  to 
save  him."  Hence  the  provisions  in  the  articles  of  confederation 
and  in  the  constitution  United  States. 

(/)  See  Vattel,  Burlaraaque  and  Hutchinson,  quoted  Tucker's 
Black,  app.  64,  65. 


12  LECTURES    ON 

That  the  colonies  were  held  to  be  only  subjects,  and  not 
as  forming  part  of  the  British  body  politic,  is  fairly  to  be 
inferred  from  the  speeches  of  lord  Chatham  and  Mr.  Burke 
in  the  passages  quoted  by  Mr.  Story  himself  (p.  153,  4) ; 
for  they  are  distinctly  considered  as  the  subjects  of  the 
crown,  and  their  rights  and  privileges  are  placed  upon  the 
footing  of  being  British  subjects,  who,  though  residing  in 
a  distinct  dominion  from  England,  were  entitled  to  the 
common  privileges  of  every  subject  of  the  crown.  The 
colonies  themselves  they  considered  distinct  from  the 
realm  of  England  :  and,  moreover,  "  the  authority  over 
them  was  declared  by  lord  Chatham  to  be  sovereign  and  su- 
preme in  every  circumstance  of  government  and  legisla- 
tion."(^)  The  statute  G  Geo.  III.  also  declares  the  colo- 
nies stibordinate  to  and  dependent  upon  the  imperial  crown 
and  parliament :  and  so  they  were  not  on  a  footing  with 
British  people,  but  were  subject  to  them,  and  were  not 
therefore  one  with  them.  And  if  not  one  with  them,  in  what 
manner  could  they  be  one  ivith  each  other. 

Judge  Story  indeed  himself  admits  that  "  for  all  pur- 
poses of  domestic  and  internal  regulation  the  colonial  le- 
gislatures deemed  themselves  possessed  of  entire  authority 
exclusive  of  each  other,"  (p.  152) :  and  that  with  the  re- 
strictions necessarily  arising  from  their  dependency  on 
Great  Britain,  "  they  were  sovereign  within  the  limits  of 
their  respective  territories."  (p.  158.)  And  again  he  says, 
"  they  considered  themselves  not  as  parcel  of  the  realm  of 
Great  Britain,  but  as  dependencies  of  the  British  crmon, 
and  owing  allegiance  thereto,  the  king  being  their  supreme 
and  sovereign  lord."  If  then  they  were  not  one  with  the 
realm,  it  is  difficult  indeed  to  imagine  how  they  could  as 
distinct  dependencies  be  one  with  each  other. 

Again,  in  page  1G3,  he  says  more  distinctly,  "though 
the  colonies  had  a  common  origin,  and  owed  a  common 
allegiance,  and  the  inhabitants  of  each  were  British  sub- 
jects, they  had  no  direct  political  connexion  with  each 
other.  Each  was  independent  of  all  the  others ;  each  in 
a  limited  sense  was  sovereign  within  its  own  territory. 
There  was  neither  alliance  nor  confederacy  between  them. 

{S)  This  doctrinp,  however  extravagant,  shews  that  Chatham 
did  not  look  upon  the  colonies  as  parts  of  the  reahn. 


CONSTITUTIONAL    LAW.  13 

The  assembly  of  one  province  could  not  make  laws  for 
another,  nor  confer  privileges  which  were  to  be  enjoyed  or 
exercised  in  another,  farther  than  they  could  be  in  any  in- 
dependent foreign  state.  They  were  known  only  as  de- 
pendencies." Now  all  this  is  orthodox  and  true,  and  as 
such  we  heartily  adopt  it.  It  is  not  for  me  indeed  to  at- 
tempt to  reconcile  it  with  the  position  already  cited,  that 
they  were  to  many  purposes  one  people;  (page  164,)  and 
still  less  with  the  reasoning  attempted,  in  page  196,  to  be 
founded  on  these  narrow  premises.  We  shall  have  occa- 
sion however  to  view  this  matter  more  closely  by  and  by. 
At  present  we  think  judge  Story's  admissions  sufficiently 
establish,  that  if  the  colonies  were  "  not  sovereign  commu- 
nities in  the  most  large  and  general  sense,"  it  was  because 
they  were  subjects  of  the  British  crown,  and  not  because 
they  were  subjects  of  or  connected  with  each  other.  The 
matter  would  have  been  more  doubtful  had  they  formed 
parts  of  the  realm  as  York  and  Middlesex  do ;  subject  to 
the  same  laws,  constituting  portions  of  one  body  politic, 
and  having  the  commune  vincnhnn  of  the  same  legislative 
authority.  Then  indeed  there  might  have  been  some  pre- 
text for  considering  the  fragments  broken  off  from  a  com- 
mon mass  as  being  homogeneous  and  identical,  but  it  will 
require  more  than  the  ipse  dixit  even  of  judge  Story  to 
establish  a  unity  between  peoples(/t)  with  different  laws, 
different  systems  of  government,  different  organizations  in 
all  their  parts,  different  revenues,  different  taxation,  differ- 
ent deliberative  assemblies  in  relation  to  their  concerns  as 
"  people,"  and  different  local  executives  and  judiciaries 
for  the  conduct  of  their  aff'airs  and  the  administration  of 
their  varied  jurisprudence.     This  leads  me  to  observe. 

Secondly,  That  the  states  were  not  one  but  distinct  from 
the  nature  of  their  several  political  societies.  This  is  ap- 
parent, if  we  look  at  their  origin,  their  settlements,  and 
their  forms  of  civil  polity.  They  were  settled  at  very  different 
times,  Virginia  150  years  before  Georgia,  and  the  rest  at 
intermediate  periods.  They  came  over  to  these  desert 
countries  under  different  circumstances.  Some  of  the 
governments  were  provincial,  some  proprietary,  and  some 

(/()  I  use  the  plural  as  Detoqueville  very  happily  does. 
q 


14  LECTVRF.S    ON 

were  chartered.  Nay,  more — some  were  conquered,  as 
were  New  York  and  Jersey,  and  by  the  principles  of  the 
common  law,  the  laws  of  the  conquered  lands  prevailed  till 
changed  by  the  stern  fat  of  the  conquerors.  These  va- 
rious peoples  were,  therefore,  essentially  distinct  and  sepa- 
rate, and  utterly  incapable  of  amalgamation  or  oneness  :  and 
we  must  remember  that  the  question  is  not  whether  they 
were  sovereign  in  respect  of  foreign  nations,  but  whether 
they  were  one  in  regard  to  each  other. 

But  the  several  colonies  were  not  only  different  in  origin 
and  in  organization,  but  they  were  perfectly  independent 
in  their  jurisdiction.  No  one  colony  had  any  pretence  of 
authority  or  power  within  the  bounds  of  another.  Even 
under  the  threatenings  of  a  savage  foe  one  could  not  call 
out  the  militia  of  another.  Hence  the  early  confedera- 
tions among  some  of  the  northern  colonies  for  mutual  de- 
fence, and  hence  the  abortive  attempt  shortly  anterior  to 
the  war  of  1756  to  establish  a  more  comprehensive  union 
of  the  colonies. (?)  These  associations  and  attempts  at  as- 
sociation successfully  repel  every  notion  of  oneness  be- 
tween them.  If  they  were  one  already,  where  was  the  ne- 
cessity of  any  farther  measure  to  bind  them  together?  If 
they  were  one,  why  were  not  all  compelled  to  join  in  those 
associations?  Why,  in  the  language  of  chancellor  Kent, 
(vol.  1,  pa.  205,)  were  they  destined  to  remain  longer  se- 
parate, and  in  a  considerable  degree  alien  commonwealths, 
jealous  of  each  other's  prosperity,  and  divided  by  policy, 
institutions,  prejudice  and  manners?  Why  was  the  force 
of  these  considerations  so  strong,  as  to  have  induced  Dr. 
Franklin  (one  of  the  commissioners  to  the  congress  that 
formed  the  plan  of  Union  in  1754)  to  have  observed  that 
a  union  of  the  colonies  was  absolutely  impossible,  or  at 
least  without  being  forced  by  the  most  grievous  tyranny 
and  oppression  ?  Why  did  Gov.  Pownal  concur  in  the 
same  sentiment,  declaring,  that  the  colonies  had  no  one 
principle  of  association  among  them,  and  that  their  man- 
ner of  settlement,  diversity  of  charters,  conflicting  inte- 
rests, and  mutual  rivalships  and  jealousies  rendered  union 
impracticable?     (Pownal  on  the  Colonies,  35,  30,  93.) 

(i)  1  Kent  202,  203. 


CONSTITUTIONAL    LAW.  15 

The  colonies,  indeed,  in  some  regards,  appear  not  only 
to  have  been  distinct  from  each  other,  but  to  have  exercised 
distinctly  independent  acts  of  sovereignty,  under  the  con- 
trol indeed  of  the  king  of  England,  whose  subjects  they 
were.  Thus,  anterior  to  the  revolution,  many  treaties 
were  made  by  the  respective  colonies  with  the  Indians 
within  their  boundaries,  all  of  whom  were  admitted  to  be 
the  rightful  occupants  of  the  soil,  with  a  right  to  use,  re- 
tain and  reside  upon  it,  exercising  authority  over  it, 
governing  themselves  by  their  own  laws,  and  having  the 
privilege  of  selling  their  lands  or  not,  at  their  pleasure, 
to  the  civilized  people  who  discovered  the  country. (j) 
Accordingly  the  several  colonies,  by  treaties,  anterior 
to  the  revolution,  entered,  for  themselves  and  on  their 
separate  account,  into  treaties  with  the  Indians  in  which 
no  other  colony  had  any  participation  or  concern.  Thus 
it  would  seem  that  in  all  things  they  acted  at  plea- 
sure, independently  of  each  other  ;  no  07ie  could  interfere 
with  another :  when  they  acted  in  concert  it  was  either  by 
compact  or  by  command  of  a  common  head,  and  when 
that  head  was  severed,  they  were  left  without  any  commune 
vinculum  to  hold  them  together,  and  each  had  a  separate 
and  distinct  power  to  supply  the  loss  by  creating  an  exe- 
cutive of  its  own,  according  to  its  own  notions  of  pro- 
priety and  policy. 

If  we  consider  the  matter  upon  principle  it  is  not  less 
clear.  What  is  it  which  constitutes  nationality  or  the  oneness 
of  people?  A  nation  or  people  is  a  political  body  united 
together  by  common  laws  and  common  institutions.  To 
constitute  one  people,  those  who  compose  it  must  act  as 
one  people.  It  is  the  unity  of  action  which  alone  makes 
those  one,  who,  without  it,  would  be  several.  Several  in- 
dividuals may  unite  in  a  body  politic,  and  by  this  unity  of 
action  be  held  as  one  man.  Without  such  unity  they  must 
remain,  what  they  are  by  nature,  several.  No  union  of 
states,  indeed,  can  ever  make  one  people;  for  while  they 
continue  states,  each  acts  for  itself,  and  that  entire  unity 
of  action  is  wanting,  which,  alone,  constitutes  oneness.  If 
the  power  of  separate  action  be  surrendered,  nationality 
indeed  is  created,  but  the  states  are  no  more.     With  what 

(j)  8  Wheat.  543. 


16  LECTURES    ON 

propriety  can  it  be  aflirmed  that  bodies  of  people  are  one 
people,  when  they  have  separate  and  distinct  governments  ; 
of  separate  and  distinct  forms;  with  distinct  and  conflict- 
ing systems  of  jurisprudence ;  where  the  judgments  of 
one  are  held  foreign  to  the  other  (as  was  the  case  in  the 
colonies) ;  when  neither  can  interfere  with  or  control  ano- 
ther, and,  in  short,  when  each  has  the  power  of  governing 
itself  without  being  dependent  on  the  will  of  the  other? 
Judge  Story,  himself,  tells  us  (195)  that  if  a  state  has  the 
sole  power  of  governing  itself,  and  is  not  dependent  on  any 
foreign  state,  it  is  called  a  sovereign  state ;  from  which 
the  corollary  seems  fair,  that  every  state  must  be  held  to 
be  independent  and  distinct  from  every  other  state  by  which 
it  is  not  governed.  The  law-making  power  seems  pecu- 
liarly to  give  its  character  in  this  regard  to  the  society. 
That  which  makes  for  itself  Imv,  and  particularly  its  fun- 
damental law,  is  so  far  sovereign.  That  power  of  legisla- 
tion for  itself,  makes  it  distinct  from  others  ;  for  legislation 
is  the  action  of  political  bodies,  and  separate  legislation  is 
separate  action,  which  is  inconsistent  with  the  notion  of 
unity. (/:)  Thus  it  is  that  two  peoples  may  have  the  same 
king,  and  yet  be  separate  people  :  as  in  the  case  of  Great 
Britain  and  Hanover  now,  and  of  England  and  Scotland 
before  the  union.  The  union  itself  proves  that  they  were 
not  one  before.  At  this  day  England  and  Hanover,  with  the 
same  king,  arc  not  involved  in  the  wars  of  each  other.  Ire- 
land, too,  before  the  union,  was  considered  as  foreign,  and 
the  judgments  of  her  courts,  and  those  of  Jamaica,  of  Ca- 
nada and  of  India  are  looked  upon  as  foreign  judgments. 
Even  the  judgment  of  the  king's  bench  is  a  foreign  judg- 
ment in  Ireland,  '2  Str.  1090  f  4  Barn.  &l  Cres.  411  ;  and 
the  court  of  king's  bench  itself  affirms  the  judgment  which 
so  pronounces  it.  But  if  these  portions  of  the  empire  are 
foreign  to  England,  the  tliirteen  colonies  must  have  been 
foreign  to  her,  and  if  foreign  to  her,  how  much  more  fo- 
reign to  Hindostan,  or  Antigua,  or  to  one  another? 

There  was  then  nothing  of  nationality  or  oneness  in  the 
people  of  the  colonies.     Each  colony  was  a  distinct  com- 

(/.)  1  Tuck.  Black-  app.  C4,  65,  citing-  Hutchinson,  V'attel  and 
Burlamaijue. 


CONSTITUTIONAL    LAW.  17 

munity  or  body  politic ;  having  its  own  charter,  its  own 
government,  its  own  laws  and  institutions,  and  its  own 
right  of  separate  action,  under  the  control  indeed  of  the 
crown,  but  not  of  the  sister  colonies :  and  hence,  I  confi- 
dently conclude,  that  they  did  not  in  any  sense  whatever 
constitute  one  people. 

Unwilling  however  to  leave  this  important  position  upon 
my  less  forcible  arguments,  I  ofter  to  the  student  the  acute 
remarks  of  judge  Upshur  in  his  able  review  of  a  part  of 
judge  Story's  work.  The  learned  and  sagacious  author 
observes : 

"It  appears  to  be  a  favourite  object  with  the  author  to 
impress  upon  the  mind  of  the  reader,  at  the  very  commence- 
ment of  his  work,  the  idea  that  the  people  of  the  several 
colonies  were,  as  to  some  objects,  which  he  has  not  ex- 
plained, and  to  some  extent,  which  he  has  not  defined,  '  one 
people.'  This  is  not  only  plainly  inferable  from  the  gene- 
ral scope  of  the  book,  but  is  expressly  asserted  in  the  fol- 
lowing passage  :  '  But  although  the  colonies  were  indepen- 
dent of  each  other  in  respect  to  their  domestic  concerns, 
they  were  not  wholly  alien  to  each  other.  On  the  contrary, 
they  were  fellow  subjects,  and  for  many  purposes  one  peo- 
ple. Every  colonist  had  a  right  to  inhabit,  if  he  pleased, 
in  any  other  colony,  and  as  a  British  subject  he  was  capa- 
ble of  inheriting  lands  by  descent  in  every  other  colony. 
The  commercial  intercourse  of  the  colonies  too  was  regu- 
lated by  the  general  laws  of  the  British  empire,  and  could 
not  be  restrained  or  obstructed  by  colonial  legislation.  The 
remarks  of  Mr.  chief  justice  Jay  are  equally  just  and  stri- 
king :  '  All  the  people  of  this  country  were  then  subjects 
of  the  king  of  Great  Britain,  and  owed  allegiance  to  him, 
and  all  the  civil  authority  then  existing  or  exercised  here 
flowed  from  the  head  of  the  British  empire.  They  were 
in  a  strict  sense  fellow  suhjerts,  and  in  a  variety  of  respects 
one  people.  When  the  revolution  commenced,  the  patriots 
did  not  assert  that  only  the  same  afl^inity  and  social  con- 
nexion subsisted  between  the  people  of  the  colonies,  which 
subsisted  between  the  people  of  Gaul,  Britain  and  Spain, 
while  Roman  provinces,  to  wit,  only  that  affinity  and  so- 
cial connexion  which  results  from  the  mere  circumstance 
of  being  governed  by  the  same  prince.'  ' 
2* 


18  LECTURES    ON 

"  In  this  passage  the  author  takes  liis  ground  distinctly 
and  boldly.  The  first  idea  suggested  by  the  perusal  of  it 
is,  that  he  discerned  very  clearly  the  necessity  of  establish- 
ing his  position,  but  did  not  discern  quite  so  clearly  by  what 
process  of  reasoning  he  was  to  accomplish  it.  If  the  pas- 
sage stood  alone,  it  would  be  fair  to  suppose  that  he  did 
not  design  to  extend  the  idea  of  a  unity  among  the  people 
of  the  colonies  beyond  the  sev  eral  particulars  which  he  has 
enumerated.  Justice  to  him  requires  that  we  should  sup- 
pose this ;  for,  if  it  had  been  otherwise,  he  would  scarcely 
have  failed  to  support  his  opinion  by  pointing  out  some  one 
of  the  '  many  purposes,'  for  which  the  colonies  were,  in  his 
view  of  them,  '  one  people.'  The  same  may  be  said  of  Mr. 
chief  justice  Jay.  He  also  has  specified  several  particu- 
lars in  Avhich  he  supposed  this  unity  to  exist,  and  arrives 
at  the  conclusion,  that  the  people  of  the  several  colonies 
were,  '  in  a  variety  of  respects,  one  people.'  In  what  re- 
spect they  were  '  one,'  except  those  which  he  has  enume- 
rated, he  does  not  say,  and  of  course  it  is  fair  to  presume 
that  he  meant  to  rest  the  justness  of  his  conclusion  upon 
them  alone.  The  historical  facts  stated  by  both  of  these 
gentlemen  are  truly  stated  ;  but  it  is  surprising  that  it  did 
not  occur  to  such  cool  reasoners,  that  every  one  of  them  is 
the,  result  of  the  relation  bcttceen  the  colonics  and  the  mo- 
ther country,  and  not  the  result  of  the  relation  between  the 
colonics  themselves.  Every  British  subject,  whether  born 
in  England  proper  or  in  a  colony,  has  a  right  to  reside  any 
where  within  the  British  realm ;  and  this  by  the  force  of 
British  laws.  Such  is  the  right  of  every  Englishman, 
wherever  he  may  be  found.  As  to  the  right  of  the  colo- 
nist to  inherit  lands  by  descent  in  any  other  colony  than 
his  own,  our  author  himself  informs  us  that  it  belonged  to 
him  '  as  a  British  subject.'  That  right,  indeed,  is  a  con- 
sequence of  his  allegiance.  By  the  policy  of  the  British 
constitution  and  laws,  it  is  not  permitted  that  the  soil  of 
her  territory  should  belong  to  any  from  whom  she  cannot 
demand  all  the  duties  of  allegiance.  This  allegiance  is  the 
same  in  all  the  colonies  as  it  is  in  England  proper;  and, 
wherever  it  exists,  the  correspondent  right  to  own  and  in- 
herit the  soil  attaches.  The  right  to  regulate  commercial 
intercourse  among  her  colonies  belongs,  of  course,  to  the 
parent  country,  unless  she  relinquishes  it  by  some  act  of 


CONSTITUTIONAL    LAW.  19 

her  own ;  and  no  such  act  is  shewn  in  the  present  case. 
On  the  contrary,  although  that  right  was  resisted  for  a  time 
by  some  of  the  American  colonies,  it  was  finally  yielded, 
as  our  author  himself  informs  us,  by  all  those  of  New- 
England,  and  I  am  not  informed  that  it  was  denied  by  any 
other.  Indeed,  the  supremacy  of  parliament,  in  most  mat- 
ters of  legislation  which  concerned  the  colonies,  was  ge- 
nerally— nay,  universally — admitted,  up  to  the  very  eve  of 
the  revolution.  It  is  true,  the  right  to  tax  the  colonies 
was  denied,  but  this  was  upon  a  wholly  different  principle. 
It  was  the  right  of  every  British  subject  to  be  exempt  from 
taxation,  except  by  his  own  consent ;  and  as  the  colonies 
were  not,  and  from  their  local  situation  could  not  be,  re- 
presented in  parliament,  the  right  of  that  body  to  tax  them 
was  denied,  upon  a  fundamental  principle  of  English  li- 
berty. But  the  right  of  the  mother  country  to  regulate 
commerce  among  her  colonies  is  of  a  different  character, 
and  it  never  was  denied  to  England  by  her  American  colo- 
nies, so  long  as  a  hope  of  reconciliation  remained  to  them. 
In  like  manner,  the  facts  relied  on  by  Mr.  Jay,  that  '  all 
the  people  of  this  country  were  then  subjects  of  the  king 
of  Great  Britain,  and  owed  allegiance  to  him,'  and  that  '  all 
the  civil  authority  then  existing  or  exercised  here  flowed 
from  the  head  of  the  British  empire,'  are  but  the  usual  in- 
cidents of  colonial  dependence,  and  are  by  no  means  pecu- 
liar to  the  case  he  was  considering.  They  do,  indeed, 
prove  a  unity  between  all  the  colonies  and  the  mother  coun- 
try,  and  shew  that  these,  taken  altogether,  are,  in  the 
strictest  sense  of  the  terms,  'one  people;'  but  I  am  at  a 
loss  to  perceive  how  they  prove,  that  two  or  more  parts  or 
subdivisions  of  the  same  empire  necessarily  constitute 
'  one  people.'  If  this  be  true  of  the  colonies,  it  is  equally 
true  of  any  two  or  more  geographical  sections  of  England 
proper ;  for  every  one  of  the  reasons  assigned  applies  as 
strictly  to  this  case  as  to  that  of  the  colonies.  Any  two 
countries  may  be  '  one  people,'  or  '  a  nation  de  facto,^  if 
they  can  be  made  so  by  the  facts  that  their  people  are  '  sub- 
jects of  the  king  of  Great  Britain,  and  owe  allegiance  to 
him,'  and  that  '  all  the  civil  authority  exercised  therein 
flows  from  the  head  of  the  British  empire.' 

"  It  is  to  be  regretted  that  the  author  has  not  given  us 
his  own  views  of  the  sources  from   which  these  several 


20  LECTURES    ON 

rights  and  powers  were  derived.  If  tliey  authorize  his 
conclusion,  that  there  was  any  sort  of  unity  among  the  peo- 
ple of  the  several  colonies,  distinct  from  their  common 
connexion  with  the  mother  country,  as  parts  of  the  s.ime 
empire,  it  must  be  because  they  flowed  from  something  in 
the  relation  betwixt  the  colonies  themselves,  and  not  from 
their  common  relation  to  the  parent  country.  Nor  is  it 
enough  that  these  rights  and  powers  should,  in  point  of 
fact,  flow  from  the  relation  of  the  colonies  to  one  another  ; 
they  must  be  the  necessary  result  of  their  political  condi- 
tion. Even  admitting,  then,  that  they  would,  under  any 
state  of  circumstances,  warrant  the  conclusion  which  the 
author  has  drawn  from  them,  it  does  not  follow  that  the 
conclusion  is  correctly  drawn  in  the  present  instance.  For 
aught  that  he  has  said  to  the  contrary,  the  right  of  every 
colonist  to  inhabit  and  inherit  lands  in  every  colony,  whe- 
ther his  own  or  not,  may  have  been  derived  from  positive 
compact  and  agreement  among  the  colonies  themselves ; 
and  this  presupposes  that  they  were  distinct  and  separate, 
and  not  '  one  people.'  And  so  far  as  the  rights  of  the  mo- 
ther country  are  concerned,  they  existed  in  the  same  form, 
and  to  the  same  extent,  over  every  other  colony  of  the  em- 
pire. Did  this  make  the  people  of  all  the  colonies  '  one 
people?'  If  so,  the  people  of  Jamaica,  the  British  East 
Indian  possessions  and  the  Canadas  are,  for  the  very  same 
reason,  'one  people'  at  this  day.  If  a  common  allegiance 
to  a  common  sovereign,  and  a  common  subordination  to 
his  jurisdiction,  are  sufiicient  to  make  the  people  of  differ- 
ent countries  '  one  people,'  it  is  not  perceived  (with  all  de- 
ference to  Mr.  chief  justice  Jay)  why  the  people  of  Gaul, 
Britain  and  Spain  might  not  have  been  '  one  people,'  while 
Roman  provinces,  notwithstanding  '  the  patriots'  did  not 
say  so.  The  general  relation  between  colonies  and  the  pa- 
rent country  is  as  well  settled  and  understood  as  any  other, 
and  it  is  precisely  the  same  in  all  cases,  except  where  spe- 
cial consent  and  agreement  may  vary  it.  Whoever,  there- 
fore, would  prove  that  any  peculiar  unity  existed  between 
the  American  colonies,  is  bound  to  shew  something  in  their 
charters,  or  some  peculiarity  in  their  condition,  to  exempt 
them  from  the  general  rule.  Judge  Story  was  too  well  ac- 
quainted with  the  state  of  the  facts  to  make  any  such  at- 
tempt in  the  present  case.     The  congress  of  the  nine  co- 


CONSTITUTIONAL    LAW.  21 

lonies,  which  assembled  at  New  York,  in  October  1765, 
declare,  that  the  colonists  '  owe  the  same  allegiance  to  the 
crown  of  Great  Britain,  that  is  owing  from  his  subjects 
born  within  the  realm,  and  all  due  subordination  to  that 
august  body,  the  parliament  of  Great  Britain.' — '  That  the 
colonists  are  entitled  to  all  the  inherent  rights  and  liberties 
of  his  [the  king's]  natural  born  subjects  within  the  kingdom 
of  Great  Britain.'  We  have  here  an  all-sufficient  founda- 
tion of  the  right  of  the  crown  to  regulate  commerce  among 
the  colonies,  and  of  the  right  of  the  colonists  to  inhabit 
and  to  inherit  land  in  each  and  all  the  colonies.  They 
were  nothing  more  than  the  ordinary  rights  and  liabilities 
of  every  British  subject ;  and,  indeed,  the  most  that  the 
colonies  ever  contended  for  was  an  equality,  in  these  re- 
spects, with  the  subjects  born  in  England.  The  facts, 
therefore,  upon  which  our  author's  reasoning  is  founded, 
spring  from  a  different  source  from  that  from  which  he  is 
compelled  to  derive  them,  in  order  to  support  his  conclu- 
sion. 

"  So  far  as  the  author's  argument  is  concerned,  the  sub- 
ject might  be  permitted  to  rest  here.  Indeed,  one  would 
be  tempted  to  think,  from  the  apparent  carelessness  and  in- 
difference with  which  the  argument  is  urged,  that  he  him- 
self did  not  attach  to  it  any  particular  importance.  It  is 
not  his  habit  to  dismiss  grave  matters  with  such  slight  ex- 
amination, nor  does  it  consist  with  the  character  of  his 
mind  to  be  satisfied  with  reasoning  which  bears  even  a 
doubtful  relation  to  his  subject.  Neither  can  it  be  supposed 
that  he  would  be  willing  to  rely  on  the  simple  ipse  dixit  of 
chief  justice  Jay,  unsupported  by  argument,  unsustained 
by  any  references  to  historical  facts,  and  wholly  indefinite 
in  extent  and  bearing.  Why,  then,  was  this  passage  writ- 
ten ?  As  mere  history,  apart  from  its  bearing  on  the  con- 
stitution of  the  United  States,  it  is  of  no  value  in  this  work, 
and  is  wholly  out  of  place.  All  doubts  upon  this  point  will 
be  removed  in  the  progress  of  this  examination.  The 
great  effort  of  the  author,  throughout  his  entire  work,  is  to 
establish  the  doctrine,  that  the  constitution  of  the  United 
States  is  a  government  of  '  the  people  of  the  United  States,' 
as  contradistinguished  from  the  people  of  the  several 
states;  or,  in  other  words,  that  it  is  a  consolidated,  and 
not  a  federative  system.     His  construction  of  every  con- 


22  LECTURES    ON 

tested  federal  power  depends  mainly  upon  this  distinction  ; 
and  hence  the  necessity  of  establishing  a  oneness  among 
the  people  of  the  several  colonies,  prior  to  the  revolution. 
It  may  well  excite  our  surprise,  that  a  proposition  so  ne- 
cessary to  the  principal  design  of  the  work,  should  be 
stated  with  so  little  precision,  and  dismissed  with  so  little 
effort  to  sustain  it  by  argument.  One  so  well  informed  as 
judge  Story,  of  the  state  of  political  opinions  in  this  coun- 
try, could  scarcely  have  supposed  that  it  would  be  received 
as  an  admitted  truth,  requiring  no  examinatioji.  It  enters 
too  deeply  into  grave  questions  of  constitutional  law,  to  be 
so  summarily  disposed  of  We  should  not  be  content, 
therefore,  with  simply  proving  that  the  author  has  assigned 
no  sufficient  reason  fur  the  opinion  he  has  advanced.  The 
subject  demands  of  us  the  still  farther  proof  that  his  opi- 
nion is,  in  fact,  erroneous,  and  that  it  cannot  be  sustained 
by  any  othei'  reasons. 

"  In  order  to  constitute  '  one  people,'  in  a  political  sense, 

/  of  the  inhabitants  of  different  countries,  something  more  is 
necessary  than  that  they  should  owe  a  common  allegiance 
to  a  common  sovereign.  Neither  is  it  sufficient  that,  in 
some  particulars,  they  are  bound  alike,  by  laws  which  that 
sovereign  may  prescribe :  nor  does  the  question  depend 
on  geographical  relations.  The  inhabitants  of  different 
islands  may  be  one  people,  and  those  of  contiguous  coun- 
tries may  be,  as  we  know  they  in  fact  are,  different  nations. 
By  the  term  '  people,'  as  here  used,  we  do  not  mean  merely 
a  number  of  persons.  We  mean  by  it  a  political  corpora- 
tion, the  members  of  which  owe  a  common  allegiance  to 
a  common  sovereignty,  and  do  not  owe  any  allegiance 
which  is  7iot  common ;  who  are  bound  by  no  laws  except 
such  as  that  sovereignty  may  prescribe;  who  owe  to  one 
another  reciprocal  obligations;  who  possess  common  poli- 
tical interests;  who  are  liable  to  common  political  duties; 
and  who  can  exert  no  sovereign  power  except  in  the  name 
of  the  whole.  Any  thing  short  of  this,  would  be  an  imper- 
fect definition  of  that  political  corporation  which  we  call 
*  a  people.' 

/  "Tested  by  this  definition,  the  people  of  the  American 
colonies  were,  in  no  conceivable  sense,  '  one  people.' 
They  owed,  indeed,  allegiance  to  the  British  king,  as  the 
head  of  each  colonial  government,  and  as  forming  a  part 


CONSTITUTIONAL    LAW.  23 

thereof;  but  this  allegiance  was  exclusive,  in  each  colony, 
to  its  own  government,  and,  consequently,  to  the  king  as 
the  head  thereof,  and  was  not  a  common  allegiance  of  the 
people  of  all  the  colonies  to  a  common  head. (I)  These 
colonial  governments  were  clothed  with  the  sovereign  pow- 
er of  making  laws,  and  of  enforcing  obedience  to  them 
from  their  own  people.  The  people  of  one  colony  owed  no 
allegiance  to  the  government  of  any  other  colony,  and  were 
not  bound  by  its  laws.  The  colonies  had  no  common  le- 
gislature, no  common  treasury,  no  common  military  pow- 
er, no  common  judicatory.  The  people  of  one  colony 
were  not  liable  to  pay  taxes  to  any  other  colony,  nor  to 
bear  arms  in  its  defence ;  they  had  no  right  to  vote  in  its 
elections;  no  influence  or  control  in  its  municipal  govern- 
ment, no  interest  in  its  municipal  institutions.  There  was 
no  prescribed  form  by  which  the  colonies  could  act  to- 
gether, for  any  purpose  whatever  ;  they  were  not  known  as 
'  one  people'  in  any  one  function  of  government.  Although 
they  were  all,  alike,  dependencies  of  the  British  crown, 
yet,  even  in  the  action  of  the  parent  country,  in  regard  to 
them,  they  were  recognized  as  separate  and  distinct.  They 
were  established  at  different  times,  and  each  under  an  au- 
thority from  the  crown,  which  applied  to  itself  alone. 
They  were  not  even  alike  in  their  organization.  Some 
were  provincial,  some  proprietary,  and  some  charter  go- 
vernments. Each  derived  its  form  of  government  from  the 
particular  instrument  establishing  it,  or  from  assumptions 
of  power  acquiesced  in  by  the  crown,  without  any  con- 
nexion with,  or  relation  to,  any  other.  They  stood  upon 
the  same  footing,  in  every  respect,  with  other  British  colo- 
nies, with  nothing  to  distinguish  their  relation  either  to 
the  parent  country  or  to  one  another.  The  charter  of  any 
one  of  them  might  have  been  destroyed,  without  in  any 
manner  affecting  the  rest.  In  point  of  fact,  the  charters 
of  nearly  all  of  them  were  altered,  from  time  to  time,  and 
the  whole  character  of  their  governments  changed.  These 
changes  were  made  in  each  colony  for  itself  alone,  some- 

(l)  The  resolutions  of  Virginia,  in  1769,  shew  that  siie  considered 
herself  merely  as  an  appendage  of  the  British  crown ;  tliat  her  le- 
gislature was  alone  authorized  to  tax  her;  and  that  she  had  aright 
to  call  on  her  king,  who  was  also  king  of  England,  to  protect  her 
against  the  usurpations  of  the  British  parliament. 


24  LECTURES    ON 

times  by  its  own  action,  sometimes  by  the  power  and  au- 
thority of  the  crown  ;  but  never  by  the  joint  agency  of  any 
other  colony,  and  never  with  reference  to  the  wishes  or 
demands  of  any  other  colony.  Thus  they  were  separate 
and  distinct  in  their  creation ;  separate  and  distinct  in  the 
forms  of  their  governments ;  separate  and  distinct  in  the 
changes  and  modifications  of  their  governments,  which 
were  made  from  time  to  time ;  separate  and  distinct  in  po- 
litical functions,  in  political  rights,  and  in  political  duties. 

"  The  provincial  government  of  Virginia  was  the  first  es- 
tablished. The  people  of  Virginia  owed  allegiance  to  the 
British  king,  as  the  head  of  their  own  local  government. 
The  authority  of  that  government  was  confined  within  cer- 
tain geographical  limits,  known  as  Virginia,  and  all  who 
lived  within  those  limits  were  '  one  people.'  When  the 
colony  of  Plymouth  was  subsequently  settled,  were  the 
people  of  that  colony  '  one'  with  the  people  of  Virginia? 
When,  long  afterwards,  the  proprietary  government  of 
Pennsylvania  was  established,  were  the  followers  of  Wil- 
liam Penn  '  one'  with  the  people  of  Plymouth  and  Virginia  ? 
If  so,  to  which  government  was  their  allegiance  due  ? 
Virginia  had  a  government  of  her  own,  Pennsylvania  a  go- 
vernment of  her  own,  and  Massachusetts  a  government  of 
her  own.  The  people  of  Pennsylvania  could  not  be 
equally  bound  by  the  laws  of  all  three  governments,  be- 
cause those  laws  might  happen  to  conflict;  they  could  not 
owe  the  duties  of  citizenship  to  all  of  them  alike,  because 
they  might  stand  in  hostile  relations  to  one  another.  Ei- 
ther, then,  the  government  of  Virginia,  which  originally 
extended  over  the  whole  territory,  continued  to  be  supreme 
therein,  (subject  only  to  its  dependence  upon  the  British 
crown,)  or  else  its  supremacy  was  yielded  to  the  new  go- 
vernment. Every  one  knows  that  this  last  was  the  case; 
that  within  the  territory  of  the  new  government  the  au- 
thority of  that  government  alone  prevailed.  How  then 
could  the  people  of  this  new  government  of  Pennsylvania 
be  said  to  be  '  one'  with  the  people  of  Virginia,  when  they 
were  not  citizens  of  Virginia,  owed  her  no  .illegiance  and 
no  duty,  and  when  their  allegiance  to  another  government 
might  place  them  in  the  relation  of  enemies  of  Virginia? 

"  In  farther  illustration  of  this  point,  let  us  suppose  that 
some  one  of  the  colonies  had  refused  to  unite  in  the  de- 


CONSTITUTIONAL    LAW.  25 

claration  of  independence  ;  what  relation  would  it  then  have 
held  to  the  others?  Not  having  disclaimed  its  allegiance 
to  the  British  crown,  it  would  still  have  continued  to  be  a 
British  colony,  subject  to  the  authority  of  the  parent  coun- 
try, in  all  respects  as  before.  Could  the  other  colonies 
have  rightfully  compelled  it  to  unite  with  them  in  their  re- 
volutionary purposes,  on  the  ground  that  it  was  part  and 
parcel  of  the  '  one  people,'  known  as  the  people  of  the  co- 
lonies? No  such  right  was  ever  claimed,  or  dreamed  of, 
and  it  will  scarcely  be  contended  for  now,  in  the  face  of 
the  known  history  of  the  time.  Such  recusant  colony 
would  have  stood  precisely  as  did  the  Canadas,  and  every 
other  part  of  the  British  empire.  The  colonies  which  had 
declared  war,  would  have  considered  its  people  as  enemies, 
but  would  not  have  had  a  right  to  treat  them  as  traitors,  or 
as  disobedient  citizens  resisting  their  authority.  To  what 
purpose,  then,  were  the  people  of  the  colonies  '  one  peo- 
ple,' if,  in  a  case  so  important  to  the  common  welfare, 
there  was  no  right  in  all  the  people  together,  to  coerce  the 
members  of  their  own  community  to  the  performance  of  a 
common  duty  ? 

"  It  is  thus  apparent  that  the  people  of  the  colonies  were 
not  '  one  people,'  as  to  any  purpose  involving  allegiance  on 
the  one  hand,  or  protection  on  the  other.  What  then,  I 
again  ask,  are  the  '  many  purposes'  to  which  the  author  al- 
ludes? It  is  certainly  incumbent  on  him  who  asserts  this 
identity,  against  the  inferences  most  naturally  deducible 
from  the  historical  facts,  to  shew  at  what  time,  by  what 
process,  and  for  what  purposes,  it  was  effected.  He  claims 
too  much  consideration  for  his  personal  authority,  when 
he  requires  his  readers  to  reject  the  plain  information  of 
history,  in  favour  of  his  bare  assertion.  The  charters  of  the 
colonies  prove  no  identity  between  them,  but  the  reverse ; 
and  it  has  already  been  shewn  that  this  identity  is  not  the 
necessary  result  of  their  common  relation  to  the  mother 
country.  By  what  other  means  they  came  to  be  '  one,'  in 
any  intelligible  and  political  sense,  it  remains  for  the  au- 
thor to  explain. 

"  If  these  views  of  the  subject  be  not  convincing,  the  au- 
thor himself  has  furnished  proof,  in  all  needful  abundance, 
of  the  incorrectness  of  his  own  conclusion.  He  tells  us 
that, '  though  the  colonies  had  a  common  origin,  and  owed 
3 


26  LECTURES    ON 

a  common  allegiance,  and  the  inhabitants  of  each  were 
British  subjects,  they  had  no  direct  political  connexion  tvith 
each  other.  Each  was  independent  of  all  the  others;  each, 
in  a  limited  sense  was  sovereign  within  its  own  territory. 
There  was  neither  alliance  nor  confederacy  between  them. 
The  assembly  of  one  province  could  not  make  laws  for 
another,  nor  confer  privileges  which  were  to  be  enjoyed  or 
exercised  in  another,  farther  than  they  could  be  in  any  in- 
dependent foreign  state.  As  colonies  they  were  also  ex- 
cluded from  all  connexion  with  foreign  states.  They  were 
known  only  as  dependencies,  and  they  followed  the  fate  of 
the  parent  country,  both  in  peace  and  war,  without  having 
assigned  to  them,  in  the  intercourse  or  diplomacy  of  na- 
>.  tions,  any  distinct  or  independent  existence.  Thet/  did 
I  not  possess  the  power  of  forming  any  league  or  treaty 
among  themselves,  which  would  acrjuire  an  obligatory  force, 
\  without  the  assent  of  the  parent  state.  And  though  their 
mutual  wants  and  necessities  often  induced  them  to  asso- 
ciate for  common  purposes  of  defence,  these  confederacies 
were  of  a  casual  and  temporary  nature,  and  were  allowed 
as  an  indulgence,  rather  than  as  a  right.  They  made  se- 
veral efforts  to  procure  the  establishment  of  some  general 
superintending  government  over  them  all ;  but  their  own 
differences  of  opinion,  as  well  as  the  jealousy  of  the  crown, 
made  these  efforts  abortive.' 

"  The  English  language  affords  no  terms  stronger  than 
those  which  are  here  used  to  convey  the  idea  of  separate- 
ness,  distinctness  and  independence,  among  the  colonies. 
No  commentary  could  make  the  description  plainer,  or 
more  full  and  complete.  The  unitij,  contended  for  by  the 
author,  no  where  appears,  but  it  is  distinctly  disaffirmed 
in  every  sentence.  The  colonies  were  not  only  distinct  in 
their  creation,  and  in  the  powers  and  faculties  of  their 
governments,  but  there  was  not  even  '  an  alliance  or  con- 
federacy between  them.'  They  had  no  *  general  superin- 
tending government  over  them  all,'  and  tried  in  vain  to  es- 
tablish one.  Each  was  '  independent  of  all  the  others,' 
having  its  own  legislature,  and  without  power  to  confer 
either  right  or  privilege  beyond  its  own  territory.  '  Each, 
in  a  limited  sense,  was  sovereign  within  its  own  territory;' 
and  to  sum  up  all,  in  a  single  sentence,  'they  had  no  di- 
rect political  connexion  with  each  other!'     The  condition 


CONSTITUTIONAL    LAW.  27 

of  the  colonies  was,  indeed,  anomalous,  if  our  author's 
view  of  it  be  correct.  They  presented  the  singular  spec- 
tacle of  '  one  people,'  or  political  corporation,  the  mem- 
bers of  which  had  '  no  direct  political  connexion  with 
each  other,'  and  who  had  not  the  power  to  form  such  con- 
nexion, even  '  by  league  or  treaty  among  themselves.' 

"  This  brief  review  will,  it  is  believed,  be  sufficient  to 
convince  the  reader,  that  our  author  has  greatly  mistaken 
the  real  condition  and  relation  of  the  colonies,  in  suppo- 
sing that  they  formed  '  one  people,'  in  any  sense,  or  for 
any  purpose  whatever.  He  is  entitled  to  credit,  however, 
for  the  candour  with  which  he  has  stated  the  historical 
facts.  Apart  from  all  other  sources  of  information,  his 
book  affords  to  every  reader  abundant  materials  for  the 
formation  of  his  own  opinion,  and  for  enabling  him  to  de- 
cide satisfactorily  whether  the  author's  inferences  from  the 
facts,  which  he  himself  has  stated,  be  warranted  by  them, 
or  not." 


LECTURES    ON    CONSTITUTIONAL    LAW.  29 


LECTURE  II. 

So  much,  young  gentlemen,  for  the  oneness  of  the  colo- 
nies as  such.  We  will  now  proceed  to  another  singular 
position  of  the  learned  commentator  on  the  constitution,  in 
furtherance  of  his  favourite  theory  of  the  oneness  of  the 
American  people.  After  having  attempted  to  sustain  his 
views  of  the  anti-revolutionary  state  of  the  colonies,  he 
proceeds  to  consider  their  condition  during  the  throes  of 
the  revolution,  and  contends  that  neither  anterior  to  the 
declaration  of  independence,  nor  subsequent  to  that  event, 
were  the  former  colonies  "  sovereign  and  independent  states 
in  the  sense  in  which  the  term  sovereign  is  applied  to 
states."  As  the  positions  of  judge  Story  are  verv  fre- 
quently ingeniously  insinuated,  rather  than  distinctly  an- 
nounced, and  as  I  am  unwilling  to  misstate  his  opinions,  or 
do  injustice  to  his  arguments,  I  shall  insert  the  whole  of 
this  passage  in  a  note. (a) 

(a)  §  200.  No  redress  of  grievances  having  followed  upon  the 
many  appeals  made  to  the  king,  and  to  parliament,  by  and  in  be- 
half of  the  colonies,  either  conjointly  or  separately,  it  became  ob- 
vious to  them,  that  a  closer  union  and  co-operation  were  necessary 
to  vindicate  their  rights  and  protect  their  liberties.  If  a  resort  to 
arms  should  be  indispensable,  it  was  impossible  to  hope  for  suc- 
cess, but  in  united  efforts.  If  peaceable  redress  was  to  be  sought,  it 
was  as  clear,  that  the  voice  of  the  colonics  must  be  heard,  and  their 
power  felt  in  a  national  organization.  In  1774  Massachusetts  re- 
commended the  assembling  of  a  continental  congress  to  deliberate 
upon  the  state  of  public  affairs:  and  according  to  her  recommen- 
dation, delegates  were  appointed  by  the  colonies  for  a  congress,  to 
be  held  in  Philadelphia  in  the  autumn  of  the  same  year.  In  some 
of  the  legislatures  of  the  colonies,  whicli  were  then  in  session,  de- 
legates were  appointed  by  the  popular,  or  representative  branch ; 
and  in  other  cases  they  were  appointed  by  conventions  of  the  people 
in  the  colonies.*  The  congress  of  delegates  (calling  themselves  in 
their  more  formal  acts  "  the  delegates  appointed  by  the  (rood  people 
of  these  colonies,"  assembled  on  the  4th  of  September  1774  ;t  and 
having  chosen  officers,  they  adopted  certain  fundamental  rules  for 
their  proceedings. 

*  1  Journ.  of  Cong.  2,  3,  &c.  27,  45  ;  9  Dane's  Abridg.  App.  §  5,  p.  16,  6  10, 
p.  21.  o       ri     y    .  r       .  y     . 

t  AU  the  states  were  represented,  except  Georgia. 

3* 


30  LECTURES    ON 

In  the  commencement  of  this  sketch  of  the  state  of  the 
colonies  during  the  revolution,  we  are  told  (§200)  that  a 
congress   was  recommended  by  Massachusetts  in   1774 ; 

§  201.  Thus  was  organized  under  the  auspices,  and  with  the 
consent  of  the  people,  acting  directly  in  their  primary,  sovereign 
capacity,  and  without  the  intervention  of  the  functionaries,  to 
whom  the  ordinary  powers  of  government  were  delegated  in  the 
colonies,  the  first  general  or  national  government,  which  has  been 
very  aptly  called  "the  revolutionary  government,"  since  in  its 
origin  and  progress  it  was  wholly  conducted  upon  revolutionary 
principles.*  The  congress,  thus  assembled,  exercised  de  facto  and 
de  jure  a  sovereign  autliority ;  not  as  the  delegated  agents  of  the 
governments  dc  facto  of  the  colonies,  but  in  virtue  of  original 
powers  derived  from  the  people.  The  revolutionary  government, 
thus  formed,  terminated  only,  when  it  was  regularly  superceded 
by  the  confederated  government  under  the  articles  finally  ratified, 
as  we  shall  hereafter  see,  in  1781. t 

§  202.  The  first  and  most  important  of  their  acts  was  a  declara- 
tion, tliat  in  determining  questions  in  this  congress,  each  colony 
or  province  should  havt;  one  vote ;  and  this  became  the  established 
course  during  the  revolution.  They  proposed  a  general  congress 
to  be  held  at  the  same  place  in  May,  in  the  next  year.  They  ap- 
pointed committees  to  take  into  consideration  their  rights  and 
grievances.  They  passed  resolutions,  that  "after  the  1st  of  De- 
cember 1774,  there  shall  be  no  importation  into  British  America 
from  Great  Britain  or  Ireland  of  any  goods,  Alc.  or  from  any 
other  place,  of  any  such  goods,  as  shall  have  been  exported  from 
Great  Britain  or  Ireland;"  that  "after  the  10th  of  September 
1775,  the  exportation  of  all  merchandize,  &c.  to  Great  Britain,  Ire- 
land, and  the  West  Indies  ought  to  cease,  unless  the  grievances  of 
America  are  redressed  before  that  time."*  They  adopted  a  declara- 
of  rio-hts,  not  differing  in  substance  from  that  of  the  congress  of 
1765,11  and  affirming,  that  the  respective  colonies  are  entitled  to 
the  common  law  of  England  and  the  benefit  of  such  English  sta- 
tutes, as  existed  at  the  time  of  their  colonization,  and  which  they 
have  by  experience  respectively  found  to  be  applicable  to  their 
local  and  other  circumstances.  They  also,  in  bclialf  of  themselves 
and  their  constituents,  adojtted  and  signed  certain  articles  of  asso- 
ciation, containing  an  agreement  of  non-importation,  non-exporta- 
tion, and  non-consumption,  in  order  to  carry  into  effect  the  prece- 
ding resolves  ;  and  also  an  agreement  to  discontinue  the  slave-trade. 
They  also  adopted  addresses  to  the  people  of  England,  to  the  neigh- 
bouring British  colonies,  and  to  the  king,  explaining  their  grie- 
vances, and  requesting  aid  and  redress. 

§  203.  In  May  1775,  a  second  congress  of  delegates  met  from  all 
the  states. §     Tliese  delegates  were  chosen,  as  the  preceding  had 

*■  9  Dane's  Abridg.  App.  P.  1,  $5,  p.  16,  ^  13,  p.  23. 
t  Sergeant  nn  Const.  Intriid.  7,  8,  (2d  ed.) 

I  1  Jour,  of  Cong.  21. 

II  See  ante,  note,  p.  179. 

^  Geoigia  did  not  send  delegates  until  tlie  15th  of  July,  1775,  who  did  not  take 
their  seats  until  the  13th  of  September. 


CONSTITUTIONAL    LAW.  31 

which  accordingly  met  on  the  4th  of  September,  and 
(§  201)  that  thus  was  organized  under  the  auspices  and 
with  the  consent  of  the  people,  acting  directly  in  their  pri- 

been,  partly  by  the  popular  branch  of  the  state  legislatures,  when 
in  session ;  but  principally  by  conventions  of  the  people  in  the  va- 
rious states.*  In  a  few  instances  the  choice  of  the  legislative  body 
was  confirmed  by  that  of  a  convention,  and  e  conversoA  They 
immediately  adopted  a  resolution,  prohibiting  all  exportations  to 
Quebec,  Nova  Scotia,  St.  Johns,  Newfoundland,  Georgia,  ex- 
cept St.  Johns  Parish,  and  East  and  West  Florida. t  This  was 
followed  up  by  a  resolution,  that  the  colonies  be  immediately 
put  into  a  state  of  defence.  They  prohibited  the  receipt  and 
negotiation  of  any  British  government  bills,  and  the  supply  of 
any  provisions  or  necessaries  for  the  British  army  and  navy 
in  Massachusetts  or  transports  in  their  service. §  They  recom- 
mended to  Massachusetts  to  consider  the  offices  of  governor  and 
lieutenant  governor  of  that  province  vacant,  and  to  make  choice 
of  a  counsel  by  the  representatives  in  assembly,  by  whom  the 
powers  of  government  should  be  exercised,  until  a  governor  of 
the  king's  appointment  should  consent  to  govern  the  colony  ac- 
cording to  its  charter.  They  authorized  the  raising  of  continental 
troops,  and  appointed  general  Washington  commander  in  chief,  to 
whom  they  gave  a  commission  in  the  name  of  the  delegates  of  the 
united  colonies.  They  had  previously  authorized  certain  military 
measures,  and  especially  the  arming  of  the  militia  of  New  York, 
and  the  occupation  of  Crown  Point  and  Ticonderoga.  They  au- 
thorized the  emission  of  two  millions  of  dollars  in  bills  of  credit, 
pledging  the  colonies  to  the  redemption  thereof.  They  framed 
rules  for  the  government  of  the  army,  they  published  a  solemn  de- 
claration of  the  causes  of  their  taking  up  arms,  an  address  to  the 
king,  entreating  a  change  of  measures,  and  an  address  to  the  peo- 
ple of  Great  Britain,  requesting  their  aid,  and  admonishing  them 
of  the  threatening  evils  of  a  separation.  They  erected  a  general 
post-office,  and  organized  the  department  for  all  the  colonies.  They 
apportioned  the  quota  that  each  colony  should  pay  of  the  bills 
emitted  by  congress. || 

§  204.  At  a  subsequent  adjournment,  they  authorized  the  equip- 
ment of  armed  vessels  to  intercept  supplies  to  the  British,  and  the 
organization  of  a  marine  corps.  They  prohibited  all  exportations, 
except  from  colony  to  colony  under  the  inspection  of  committees. 
They  recommended  to  New  Hampshire,  Virginia  and  South  Caro- 
lina, to  call  conventions  of  the  people  to  establish  a  form  of  govern- 
ment.H  They  authorized  the  grant  of  commissions  to  capture 
armed  vessels  and  transports  in  the  British  service ;  and  recom- 

*  See  Pevhallow  v.  Doane,  3  Dall.  54,  and  particularly  the  opinions  of  Iredell 
J.  and  Blair  J.  on  this  point.    Journals  of  1775,  p.  73  to  79. 
t  Journals  of  Congress  of  1775,  p.  73  to  79. 
t  Journals  of  Congress  of  1775,  p.  103. 
5  Journals  of  Congress  of  1775,  p.  115. 
II  Journals  of  Congress  of  1775,  p.  177. 
ir  Journals  of  Congress  of  1775,  p.  231,  235,  279. 


32  LECTURES    ON 

mary  sovereign  capacity,  and  without  the  intervention  of  the 
functionaries  to  whom  the  ordinary  powers  of  government 
were  delegated,  the  first  general  or  national  government, 

mended  the  creation  of  prize  courts  in  each  colony,  reserving  a 
right  of  appeal  to  congress.*  They  adopted  rules  for  the  regula- 
tion of  the  navy,  and  for  the  division  of  prizes  and  prize  money. 1 
They  denounced,  as  enemies,  all,  who  should  obstruct  or  discou- 
rage the  circulation  of  bills  of  credit.  They  authorized  further 
emissions  of  bills  of  credit,  and  created  two  military  departments 
for  the  middle  and  southern  colonies.  Tiiey  authorized  general 
reprisals,  and  the  equipment  of  private  armed  vessels  against  Bri- 
tish vessels  and  property.!  They  organized  a  general  treasury  de- 
partment. The}'  authorized  the  exportation  and  importation  of  all 
goods  to  and  from  foreign  countries,  not  subject  to  Great  Britain, 
with  certain  exceptions;  and  prohibited  the  importation  of  slaves; 
and  declared  a  forfeiture  of  all  prohibited  goods. §  They  recom- 
mended to  the  respective  assemblies  and  conventions  of  the  colo- 
nies, where  no  government,  sufficient  to  the  exigencies,  had  been 
established,  to  adopt  such  government,  as  in  tlie  opinion  of  the  re- 
presentatives should  best  conduce  to  the  happiness  and  safety  of 
their  constituents  in  particular,  and  America  in  general,  and  adopt- 
ed a  preamble,  which  stated,  "  that  the  exercise  of  every  kind  of 
authority  under  the  crown  of  Great  Britain  should  be  totall)'  sup- 
pressed." || 

§  205.  These  measures,  all  of  which  progressively  pointed  to  a 
separation  from  the  mother  country,  and  evinced  a  determination 
to  maintain,  at  every  hazard,  the  liberties  of  the  colonies,  were 
soon  followed  by  more  decisive  steps.  On  the  7th  of  June  1776, 
certain  resolutions  respecting  independency  were  moved,  which 
were  referred  to  a  committee  of  the  whole.  On  the  tenth  of  June 
it  was  resolved,  that  a  committee  be  appointed  to  prepare  a  decla- 
ration, "that  these  united  colonies  are,  and  of  right  ougiit  to  be, 
free  and  independent  states;  that  they  are  absolved  from  all  alle- 
giance to  the  British  crown;  and  that  all  political  connexion  be- 
tween them  and  the  state  of  Great  Britain  is,  and  ought  to  be,  dis- 
solved."II  On  the  11th  of  June  a  committee  was  appointed  to  pre- 
pare and  digest  the  form  of  a  confederation  to  be  enti^red  into  be- 
tween the  colonies,  and  also  a  committee  to  prepare  a  plan  of  trea- 
ties to  be  proposed  to  foreign  powers.**  On  the  2oth  of  June  the 
committee  appointed  to  prepare  a  Declaration  of  Independence 
brouorlit  in  a  draught.  On  tiie  second  of  July,  congress  adopted 
the  resolution  for  Independence  ;  and  on  the  4th  of  July  they 
adopted  the  Declaration  of  Independence  ;  and  thereby  solemnly 

*  Journals  of  Conftress  of  177.'),  p.  2.59,  260,  &c. 

t  Journals  of  Congress  of  1776,  p.  13. 

\  J  .urnal.s  of  Congress  of  1776,  p.  K  6,  167, 118,  119. 

§  Journals  of  Congress  of  1776,  p.  122,  123. 

II  Journals  of  Congress  of  1776,  p.  166,  174. 

ir  Journals  of  Congress  of  1776,  p.  20.'),  206. 

♦*  Journals  of  Congress  of  1776,  p.  207. 


CONSTITUTIONAL    LAW.  33 

and  "that  the  congress  thus  assembled,  exercised  de  facto 
and  de  jure  a  sovereign  authority ;  not  as  the  delegated 
agents  of  the  governments  de  facto  of  the  colonies,  but  in 

published  and  declared,  "  That  these  united  colonies  are,  and  of 
right  ought  to  be,  free  and  independent  states ;  that  they  are  ab- 
solved from  all  allegiance  to  the  British  crown  ;  and  that  all  poli- 
tical connexion  between  them  and  the  state  of  Great  Britain  is, 
and  ought  to  be,  totally  dissolved  ;  and  that,  as  free  and  indepen- 
dent states,  they  have  full  power  to  levy  war,  conclude  peace,  con- 
tract alliances,  establish  commerce,  and  to  do  all  other  acts  and 
things,  which  independent  states  may  of  right  do." 

§  206.  These  minute  details  have  been  given,  not  merely,  be- 
cause they  present  an  historical  view  of  the  actual  and  slow  pro- 
gress towards  independence  ;  but  because  they  give  rise  to  several 
very  important  considerations  respecting  the  political  rights  and 
sovereignty  of  the  several  colonies,  and  of  the  union,  which  was 
thus  spontaneously  formed  by  the  people  of  the  united  colonies. 

§  207.  In  the  first  place,  antecedent  to  the  Declaration  of  Inde- 
pendence, none  of  the  colonies  were,  or  pretended  to  be  sovereign 
states,  in  the  sense,  in  which  the  term  "sovereign"  is  sometimes 
applied  to  states.^  The  term  "sovereign"  or  "sovereignty"  is 
used  in  different  senses,  which  often  leads  to  a  confusion  of  ideas, 
and  sometimes  to  very  mischievous  and  unfounded  conclusions. 
By  "sovereignty"  in  its  largest  sense  is  meant,  supreme,  absolute, 
uncontrollable  power,  the  jus  summi  iinperii,\  the  absolute  right 
to  govern.  A  state  or  nation  is  a  body  politic,  or  society  of  men, 
united  together  for  the  purpose  of  promoting  their  mutal  safety 
and  advantage  by  their  combined  strength.,:  By  the  very  act  of 
civil  and  political  association,  each  citizen  subjects  himself  to  the 
authority  of  the  whole ;  and  the  authority  of  all  over  each  mem- 
ber essentially  belongs  to  the  body  politic. §  A  state,  which  pos- 
sesses this  absolute  power,  without  any  dependence  upon  any  fo- 
reign power  or  state,  is  in  the  largest  sense  a  sovereign  state. || 
And  it  is  wholly  immaterial,  what  is  the  form  of  the  government, 
or  by  whose  hands  this  absolute  authority  is  exercised.  It  may 
be  exercised  by  the  people  at  large,  as  in  a  pure  democracy  ;  or 
by  a  select  few,  as  in  an  absolute  aristocracy  ;  or  by  a  single  person, 
as  in  an  absolute  monarchy. IT  But  "sovereignty"  is  often  used 
in  a  far  more  lin)ited  sense,  than  that,  of  which  we  have  spoken, 
to  designate  such  political  powers,  as  in  the  actual  organization 
of  the  particular  state  or  nation  are  to  be  exclusively  exer- 
cised by  certain  public  functionaries,  without  the  control  of  any 
superior  authority.  It  is  in  this  sense,  that  Blackstone  employs 
it,  when  he  says,  that  it  is  of  "  the  very  essence  of  a  law,  that  it 
is  made  by  the  supreme  power.     Sovereignty  and  legislature  are, 

*3Dall.  110.  Per  Blair  J.;  9  Dane's  Abride.  Appx.  iJ2,  p.  10,  $  3,  p.  12,  $5,  p.  16. 
t  1  Bi.  Comm.  49  ;  2  Dall.  471.     Per  Jay  C.  J. 

I  Vattel,  B.  1,  ch.  1,  §  1  ;  2  Dall.  455.     Per  Wilson  J. 
§  Vaitel,  B.  1,  ch.  I,>i2. 

II  2  Dall.  456,  457.     Per  Wilson  J. 
ir  Vattel,  B.  l,ch.  1,^2,  3. 


^i 


i  I  i^ 


34  LECTURES    ON 

virtue  of  original  powers  derived  from  the  people."  Now  in 
this  short  passage  there  is  a  material  misstatement  even  ac- 
cording to  the  learned  author  himself.     He  here  says,  that 

indeed,  convertible  terms;  one  cannot  subsist  without  the  other."* 
Now,  in  every  limited  government  the  power  of  legislation  is,  or 
at  least  may  be,  limited  at  the  will  of  the  nation  ;  and  therefore 
the  legislature  is  not  in  an  absolute  sense  sovereign.  It  is  in  the 
same  sense,  that  Blackstone  says,  "the  law  ascribes  to  the  king  of 
England  the  attribute  of  sovereignty  or  pre-eminence,"!  because 
in  respect  to  the  powers  confided  to  him,  he  is  dependant  on  no 
man,  and  accountable  to  no  man,  and  subjected  to  no  superior  ju- 
risdiction. Yet  the  king  of  England  cannot  make  a  law  ;  and  his 
acts,  beyond  the  powers  assigned  to  him  by  the  constitution,  are 
utterly  void. 

§  208.  In  like  manner  the  word  "  state"  is  used  in  various  senses. 
In  in  its  most  enlarged  sense  it  means  the  people  composing  a  par- 
ticular nation  or  community.  In  this  sense  the  state  means  the 
whole  people,  united  into  one  body  politic ;  and  the  state,  and  the 
people  of  the  state,  are  equivalent  expressions.!  Mr.  Justice  Wil- 
son in  his  Law  Lectures,  uses  the  word  "state"  in  its  broadest 
sense.  "  In  free  states,"  says  he,  "the  people  form  an  artificial 
person,  or  body  politic,  the  highest  and  noblest,  that  can  be  known. 
They  form  that  moral  person,  which  in  one  of  my  former  lectures, § 
I  described,  as  a  complete  body  of  free,  natural  persons,  united  to- 
gether for  their  common  benefit ;  as  having  an  understanding  and 
a  will;  as  deliberating,  and  resolving,  and  acting;  as  possessed  of 
interests,  which  it  ought  to  manage  ;  as  enjoying  rights,  which  it 
ought  to  maintain  ;  and  as  lying  under  obligations,  which  it  ought 
to  perform.  To  this  moral  person,  we  assign,  by  way  of  eminence, 
the  dio-nified  appellation  of  "statk."||  But  there  is  a  more  limi- 
ted sense,  in  which  the  word  is  often  used,  where  it  expresses 
merely  the  positive  or  actual  organization  of  the  legislative,  exe- 
cutive, or  judicial  powers. II  Thus,  the  actual  government  of  a 
state  is  frequently  designated  by  the  name  of  the  state.  We  say, 
the  state  has  power  to  do  this  or  that;  the  state  has  passed  a  law, 

*  1  Bl.  Comm.  46.  See  aliso  1  Tucker's  Black.  Coiiim.  App.  note  A.,  a  com- 
mentary on  tliis  clause  of  the  author's  te.\t. 

t  1  Bl.  Comm.  241. 

X  Pcnhallow  v.  Doanc,  1  Peters'.s  Gond.  Rep.  37,  38,  39;  3  Dall.  R.  93,  94.  Per  Ire- 
dellJ.  C/i!%An?m  V.  Groriria,2  Dall.  4.'"x=).  Per,VVilson  J.  S.  C.  2  Cond.  Rep.  (i56, 
t)70  ;  2  Wilson's  I.ect.  120  ;  Dane's  .'Xpp.x.  ^  50,  p.  G3. 

6  1  Wilson's  Lect. 304,  30.1. 

11  2  Wilson's  Lect.  120,  121. 

IT  Mr.  Madison,  in  his  elaborate  report  in  the  Virginia  legislature  in  January 
1800,  adverts  to  the  different  senses,  in  which  the  word  "  state"  is  used.  He 
says,  "  It  is  indeed  true,  that  the  term  '  states'  is  sometimes  used  in  a  vague 
sense,  and  sometimes  in  different  senses,  according  to  the  subject,  to  which  it 
is  applied.  Thus  it  sometimes  means  the  separate  sections  of  territory,  occu- 
pied by  the  political  societies  within  each;  sometimes  the  particular  crocerii 
menLi  established  by  those  societies  ;  somstimes  those  societies,  as  organized 
into  those  particular  governments  ;  and  lastly,  it  means  the  people,  compo8in<; 
those  political  societies  in  their  highest  sovereign  capacity." 


CONSTITUTIONAL    LAW.  35 

"  the  members  of  the  congress  acted  not  as  the  delegated 
agents  of  the  governments  de  facto,  but  in  virtue  of  origi- 
nal povi'ers  derived  from  the  people."     And  yet  in  the  next 

or  prohibited  an  act,  meaning  no  more  than,  that  the  proper  func- 
tionaries, organized  for  that  purpose,  have  power  to  do  the  act,  or 
have  passed  the  law,  or  prohibited  the  particular  action.  The  so- 
vereignty of  a  nation  or  state,  considered  with  reference  to  its  as- 
sociation, as  a  body  politic,  may  be  absolute  and  uncontrollable  in 
all  respects,  except  the  limitations,  which  it  chooses  to  impose  upon 
itself.*  But  the  sovereignty  of  the  government,  organized  within 
the  state,  may  be  of  a  very  limited  nature.  It  ma}'  extend  to  few, 
or  to  many  objects.  It  may  be  unlimited,  as  to  some;  it  may  be 
restrained,  as  to  others.  To  the  extent  of  the  power  given,  the 
government  may  be  sovereign,  and  its  acts  may  be  deemed  the  so- 
vereign acts  of  the  state.  Nay  the  state,  by  which  we  mean  the 
people  composing  the  state,  may  divide  its  sovereign  powers  among 
various  functionaries,  and  each  in  the  limited  sense  would  be  sove- 
reign in  respect  to  the  powers,  confided  to  each  ;  and  dependent  in 
all  other  cases. t  Strictly  speaking,  in  our  republican  forms  of  go- 
vernment, the  absolute  sovereignty  of  the  nation  is  in  the  people 
of  the  nation;  and  the  residuary  sovereignty  of  each  state,  not 
granted  to  any  of  its  public  functionaries,  is  in  the  people  of  the 
state  .t 

§  209.  There  is  another  mode,  in  which  we  speak  of  a  state  as 
sovereign,  and  that  is  in  reference  to  foreign  states.  Whatever 
may  be  the  internal  organization  of  the  government  of  any  state, 
if  it  has  the  sole  power  of  governing  itself,  and  is  not  dependent 
upon  any  foreign  state,  it  is  called  a  sovereign  stale ;  that  is,  it  is  a 
state  having  the  same  rights,  privileges,  and  powers,  as  other  inde- 
pendent states.  It  is  in  this  sense,  that  the  term  is  generally  used 
in  treatises  and  discussions  on  the  law  of  nations.  A  full  conside- 
ration of  this  subject  will  more  properly  find  place  in  some  future 
page.§ 

*  2  Dall.  A'-Vi  ;  Iredell  J.    Id.  4.5,5,  4.56.     Pei  Wilson  J. 

I  3  Dall.  93.     Per  Iredell  J.    2  Dall.  455,  457.     Per  Wilson  J. 

X  2  Dall.  471,  472.     Per  Jay  C.  J. 

Mr.  J.  (i.  Adams,  in  his  Oration  on  the  4th  of  July  1831,  published  after  the 
preparation  of  these  commentaries,  uses  the  following  language:  "It  is  not 
true,  that  there  must  reside  in  all  governments  an  absolute,  uncontrollable,  ir- 
resistible and  despotic  power;  nor  is  such  power  in  any  manner  essential  to 
sovereignty.  Uncontrollable  power  exists  in  no  government  on  earth.  The 
sternest  despotisms  in  any  region  and  in  every  age  of  the  world,  are  and  have 
been  under  perpetual  control.  Unlimited  power  belongs  not  to  man  ;  and  rot- 
ten will  be  the  foundation  of  every  government,  leaning  upon  such  a  maxim 
for  its  support.  Least  of  all  can  it  be  predicated  of  a  government,  professing 
to  be  founded  upon  an  original  compact.  The  pretence  of  an  absolute  irresisti- 
ble, despotic  power,  existing  in  every  government  somewhere,  is  incompatible 
with  the  first  principles  of  natural  right." 

iji  Dr.  Rush,  in  a  political  communication,  in  1786,  uses  the  term  "  sovereign- 
ty" in  another,  and  somewhat  more  limited  sense.*  He  says,  "  The  people  of 
America  have  mistaken  the  meaning  of  the  word  'sovereignty.'  Hence  each 
slate  pretends  to  be  sovereign.  In  Europe  it  is  applied  to  those  states,  which 
possess  the  power  of  making  war  and  peace,  of  forming  treaties,  and  the  like. 

*  1  .\mer.  Museum,  8,  9. 


3b  LECTURES    ON 

preceding  section  we  are  told  that  "  in  some  of  the  legis- 
latures of  the  colonies,  which  were  then  in  session,  dele- 
gates   were   appointed   by    the   popular    or   representative 

§  210.  Now  it  is  apparent,  that  none  of  the  colonies  before  tlie 
revolution  were,  in  the  most  \a,xge  and  general  sense,  indepen- 
dent, or  sovereign  communities.  They  were  all  originally  settled 
under,  and  subjected  to  the  British  crown.*  Their  powers  and  au- 
thorities were  derived  from,  and  limited  by  their  respective  char- 
ters. All,  or  nearly  all,  of  these  charters  controlled  their  legisla- 
tion by  prohibiting  them  from  making  laws  repugnant,  or  contrary 
to  those  of  England.  The  crown,  in  many  of  them,  possessed  a 
negative  upon  their  legislation,  as  well  as  the  e.^cclusive  appoint- 
ment of  their  superior  officers;  and  a  right  of  revision,  by  way  of 
appeal,  of  the  judgments  of  their  courts.!  In  their  most  solemn 
declarations  of  rights,  they  admitted  themselves  bound,  as  British 
subjects,  to  allegiance  to  the  British  crown;  and  as  such,  they 
claimed  to  be  entitled  to  all  the  rights,  liberties  and  immunities  of 
free  born  British  subjects.  They  denied  all  power  of  taxation,  ex- 
cept by  their  own  colonial  legislatures;  but  at  the  same  time  they 
admitted  themselves  bound  by  acts  of  the  British  parliament  for 
the  regulation  of  external  commerce,  so  as  to  secure  the  commer- 
cial advantages  of  the  whole  empire  to  the  mother  country,  and 
the  commercial  benefits  of  its  respective  members  X  So  far,  as  re- 
spects foreign  states,  the  colonies  were  not,  in  the  sense  of  the 
laws  of  nations,  sovereign  states;  but  mere  dependencies  of  Great 
Britain.  They  could  make  no  treaty,  declare  no  war,  send  no  am- 
bassadors, regulate  no  intercourse  or  commerce,  nor  in  any  other 
shape  act,  as  sovereigns,  in  tlie  negotiations  usual  between  inde- 
pendent states.  In  respect  to  each  other,  they  stood  in  the  com- 
mon relation  of  British  subjects;  the  legislation  of  neither  could 
be  controlled  by  any  other ;  but  there  was  a  common  subjection  to 
the  British  crown. §  If  in  any  sense  they  might  claim  the  attri- 
butes of  sovereignty,  it  was  only  in  that  subordinate  sense,  to 
which  we  have  alluded,  as  exercising  within  a  limited  extent  cer- 
tain usual  powers  of  sovereignty.  They  did  not  even  affect  to 
claim  a  local  allegiance. || 

§  211.  In  the  next  place,  the  colonies  did  not  severally  act  for 
themselves,  and  proclaim  their  own  independence.    It  is  true,  that 

As  this  power  belongs  only  to  concross,  tliey  are  the  only  sovereign  power  in 
the  United  States.  We  commit  a  similar  mistake  in  our  ideas  of  the  word  '  in- 
dependent.' No  individual  state,  as  such,  has  any  claim  to  independence.  She 
is  independent  only  in  a  union  with  her  sister  states  in  congress."  Dr.  Barton, 
on  the  other  hand,  in  a  similar  essay,  e.xplains  the  operation  of  the  system  of 
the  confederation  in  the  manner,  which  has  been  given  in  the  text.* 

*2Dall.  471.     PerJay,  C.  J. 

t  See  Marshall's  Hist,  of  Colonies,  p.  483 ;  Journal  of  Congress,  1774,  p.  29. 

X  Journal  of  Congress  1774,  p.  27,  29,  38,  39;  1775,  p.  152,  15(i ;  Marshall's 
Hist,  of  Colonies,  ch.  14,  p.  412,  483. 

$  1  Chalmers's  Annals,  G86,  687  ;  2  Dall.  470.     Per  Jay,  C.  J. 

II  Journal  of  Congress,  1776,  p.  282  ;  2  Haz.  Coll.  591  ;  Marsh.  Colonies,  App. 
No.  3,  p.  469. 

*1  Anicr   .Miispuni,  13,  14. 


CONSTITUTIONAL    LAW.  37 

branch,  and  in  other  cases  they  were  appointed  by  conven- 
tions of  the  people  in  the  colonies.  How  many  were  ap- 
pointed in  one  mode^  and  how  many  in  the  other,  I  have 

some  of  the  states  had  previously  formed  incipient  governments 
for  themselves  ;  but  it  was  done  in  compliance  with  the  recommen- 
dations of  congress.*  Virginia,  on  the  2'.)th  of  June  1776,  by  a  con- 
vention of  delegates,  declared  "  the  government  of  this  country,  as 
formerly  exercised  under  the  crown  of  Great  Britain,  totally  dissolv- 
ed;" and  proceeded  to  form  a  new  constitution  of  government. 
New  Hampshire  also  formed  a  government  in  December  1775,  whicii 
was  manifestly  intended  to  be  temporary,  "  during  (as  they  said) 
the  unhappy  and  unnatural  contest  with  Great  Britain."!  New 
Jersey,  too,  established  a  frame  of  government,  on  the  2d  of  July 
1776;  but  it  was  expressly  declared  that  it  should  be  void  upon  a 
reconciliation  with  Great  Britain.!  And  South  Carolina,  in  March 
1776,  adopted  a  constitution  of  government;  but  this  was,  in  like 
manner,  "  established  until  an  accommodation  between  Great  Bri- 
tain and  America  could  be  obtained." §  But  the  declaration  of  the 
independence  of  all  the  colonies  was  the  united  act  of  all.  It  was 
"  a  declaration  by  the  representatives  of  the  United  States  of  Ame- 
rica in  congress  assembled;" — "by  the  delegates  appointed  by  the 
good  people  of  the  colonies,"  as  in  a  prior  declaration  of  rights 
they  were  called. ||  It  was  not  an  act  done  by  the  state  govern- 
ments then  organized ;  nor  by  persons  chosen  by  them.  It  was 
emphatically  the  act  of  the  \v\\o\e people  of  the  united  colonies,  by 
the  instrumentality  of  their  representatives,  chosen  for  that,  among 
other  purposes. TI  It  was  an  act  not  competent  to  the  state  govern- 
ments, or  any  of  them,  as  organized  under  their  charters,  to  adopt. 
Those  charters  neither  contemplated  the  case,  nor  provided  for  it. 
It  was  an  act  of  original,  inherent  sovereignty  by  the  people  them- 
selves, resulting  from  their  right  to  change  the  form  of  govern- 
ment, and  to  institute  a  new  government,  whenever  necessary  for 
their  safety  and  happiness.  So  tlie  declaration  of  independence 
treats  it.  No  state  bad  presumed  of  itself  to  form  a  new  govern- 
ment, or  to  provide  for  the  exigencies  of  the  times,  without  con- 
sulting congress  on  the  subject;  and  when  they  acted,  it  was  in 
pursuance  of  the  recommendation  of  congress.  It  was,  therefore, 
the  achievement  of  the  whole  for  the  benefit  of  the  whole.  The 
people  of  the  united  colonies  made  the  united  colonies  free  and  in- 
dependent states,  and  absolved  tliem  from  all  allegiance  to  the  Bri- 
tish crown.  The  declaration  of  independence  has  accordingly  al- 
ways been  treated,  as  an  act  of  paramount  and  sovereign  authority, 
complete  and  perfect  per  se,  and  ipso  facto  working  an  entire  dis- 

*  Journal  of  Congress,  1775,  p.  115,  931,  235,  279;  1  Pitk.  Hist.  351,  3.i5  ; 
Marsh.  Colon,  ch.  14,  p.  441,  447  ;  9  Hening's  Stat.  112,  113  ;  9  Dane's  Abridg. 
App.  <S  5,  p.  16. 

t  2  i?elk.  N.  Hamp.  ch.  25,  p.  306,  308,  310  ;  1  Pitk.  Hist.  351,  355. 

j  Stokes's  Hist.  Colon.  51,  75. 

^  Stokes's  Hist.  Colon.  105  ;  1  Pitk.  Hist.  355. 

II  Journal  1776,  p.  241  ;  Journal  1774,  p.  27,  45. 

ir  2  Dall.  470,  471.     Per  Jay,  C.  J.  ;  9  Dane's  Abridg.  App.   <i  12,  13,  p.  23,  24. 

4 


38  LECTURES    ON 

not  at  hand  the  means  of  ascertaining.  It  is  sufficient  that 
part  of  the  members  were  appointed  by  the  acting  govern- 
ments, to  disarm  the  argument  of  all  its  force,  if  indeed  it 

solution  of  all  political  connexion  with  and  allegiance  to  Great 
Britain.  And  this,  not  merely  as  a  practical  fact,  but  in  a  legal 
and  constitutional  view  of  the  matter  by  courts  of  justice.* 

^  212.  In  the  debates  in  the  South  Carolina  legislature,  in  Janu- 
ary 1788,  respecting  the  propriety  of  calling  a  convention  of  the 
people  to  ratify  or  reject  the  constitution,  a  distinguished  states- 
mant  used  the  following  language  :  "  This  admirable  manifesto 
(i.e.  the  declaration  of  independence)  sufficiently  refutes  the  doc- 
trine of  the  individual  sovereignty  and  independence  of  the  seve- 
ral states.  In  that  declaration  the  several  states  are  not  even  enu- 
merated ;  but  after  reciting  in  nervous  language,  and  with  con- 
vincing arguments,  our  right  to  independence,  and  the  tyranny, 
which  compelled  us  to  assert  it,  the  declaration  is  made  in  the  fol- 
lowing words:  'We,  therefore,  the  representatives  of  the  United 
States,  &c.  do,  in  the  name,  &c.  of  the  good  people  of  these  colo- 
nies, solemnly  publish,  &c.  that  these  united  colonies  are,  and  of 
right  ought  to  bo,  free  and  independent  states.'  The  separate  inde- 
pendence and  individual  sovereignty  of  the  several  states  were 
never  thought  of  by  the  enlightened  band  of  patriots,  who  framed 
this  declaration.  The  several  states  are  not  even  mentioned  by 
name  in  any  part,  as  if  it  was  intended  to  impress  the  maxim  on 
America,  that  our  freedom  and  independence  arose  from  our  union, 
and  that  without  it  we  could  never  be  free  or  independent.  Let 
us  then  consider  all  attempts  to  weaken  this  union  by  maintain- 
ing, that  each  state  is  separately  and  individually  independent,  as 
a  species  of  political  heresy,  which  can  never  benefit  us,  but  may 
bring  on  us  the  most  serious  distresses. "+ 

*  2  Dallas's  R.  470. 

t  Mr.  Charles  Coteswortli  Pinckney. 

J  Debates  in  South  Carolina,  1788,  printed  by  A.  E.  Miller,  Charleston,  1831, 
p.  43,44. — .Mr.  Adams,  in  his  Oration  on  the  4th  of  July  1831,  which  is  valuable 
for  its  views  of  constitutional  principles,  insists  upon  the  same  doctrine  at  con- 
siderable lengtli.  Though  it  has  been  published  since  the  original  preparation 
of  these  lectures,  1  gladly  avail  myself  of  an  opportunity  to  use  his  authority 
in  corroboration  of  the  -same  views.  "  The  union  of  the  colonies  had  preceded 
this  declaration,  [of  independence,]  and  even  the  commencement  of  the  war. 
The  declaration  was  joint,  that  the  united  colonies  were  free  and  independent 
states,  but  not  that  any  one  of  them  was  a  free  and  independent  state,  separate 
from  the  rest." — "  Tiie  declaration  of  independence  was  a  social  compact,  by 
which  the  whole  people  covenanted  with  each  citizen,  and  each  citizen  with 
the  whole  people,  that  the  united  colonies  were,  and  of  right  ought  to  be,  free 
and  independent  states.  To  this  compact  union  was  as  vital,  as  freedom  or  in- 
dependence." — "  The  declaration  of  independence  announced  the  severance  of 
the  thirteen  united  colonies  from  the  rest  of  the  British  empire,  and  the  exist- 
ence of  their  people  from  that  day  forth  as  an  independent  nation.  The  people 
of  all  the  colonies,  speaking  by  their  ri^presentatives,  constituted  themselves 
one  moral  person  before  the  face  of  their  fellow  men." — "  The  declaration  of 
independence  was  not  a  declaration  of  liberty  merely  acquired,  nor  was  it  a 
form  of  government.  The  people  of  the  colonies  were  already  free,  and  their 
forms  of  government  were  various.  Tliey  were  all  colonies  of  a  monarchy.  The 
king  of  Great  Britain  was  their  common  sovereign." 


CONSTITUTIONAL    LAW.  39 

possessed  any.  It  would  be  sufficient  to  demonstrate  that 
the  popular  branch  of  the  state  legislatures  wei*e  in  part  at 
least  represented  in  congress,  as  political  bodies,  and  that 

§  213.  In  the  next  place  we  have  seen,  that  the  power  to  do  this 
act  was  not  derived  from  the  state  governments  ;  nor  was  it  done 
generally  with  their  co-operation.  The  question  then  naturally 
presents  itself,  if  it  is  to  be  considered  as  a  national  act,  in  what 
manner  did  the  colonies  become  a  nation,  and  in  what  manner  did 
congress  become  possessed  of  this  national  power  ?  The  true  an- 
swer must  be,  that  as  soon  as  congress  assumed  powers  and  passed 
measures,  which  were  in  their  nature  national,  to  that  extent  the 
people,  from  whose  acquiescence  and  consent  they  took  effect,  must 
be  considered  as  agreeing  to  form  a  nation."  Tlie  congress  of 
1774,  looking  at  the  general  terms  of  the  commissions,  under 
which  the  delegates  were  appointed,  seem  to  have  possessed  the 
power  of  concerting  such  measures,  as  they  deemed  best,  to  re- 
dress the  grievances,  and  preserve  tlie  rights  and  liberties  of  all  the 
colonies.  Their  duties  seem  to  have  been  principally  of  an  adviso- 
ry nature ;  but  the  exigencies  of  the  times  led  them  rather  to  fol- 
low out  the  wishes  and  objects  of  their  constituents,  than  scrupu- 
lously to  examine  the  words,  in  which  their  authority  was  commu- 
nicated.! The  congress  of  1775  and  1776  were  clothed  with  more 
ample  powers,  and  the  language  of  their  commissions  generally 
was  sufficiently  broad  to  embrace  the  right  to  pass  measures  of  a 
national  character  and  obligation.  The  caution  necessary  at  that 
period  of  the  revolutionary  struggle  rendered  that  language  more 
guarded,  than  the  objects  really  in  view  would  justify  ;  but  it  was 
foreseen,  that  the  spirit  of  the  people  would  eagerly  second  every 
measure  adopted  to  further  a  general  union  and  resistance  against 
the  British  claims.  The  congress  of  177.5  accordingly  assumed  at 
once  (as  we  have  seen)  the  exercise  of  some  of  the  highest  func- 
tions of  sovereignty.  They  took  measures  for  national  defence 
and  resistance  ;  they  followed  up  the  prohibitions  upon  trade  and 
intercourse  with  Great  Britain  ;  they  raised  a  national  army  and 
navy,  and  authorized  limited  national  hostilities  against  Great  Bri- 
tain; they  raised  money,  emitted  bills  of  credit,  and  contracted 
debts  upon  national  account;  they  established  a  national  post  of- 
fice ;  and  finally  they  authorized  captures  and  condemnation  of 
prizes  in  prize  courts,  with  a  reserve  of  appellate  jurisdiction  to 
themselves. 

§  214.  The  same  body,  in  1776,  took  bolder  steps,  and  exerted 
powers,  which  could  in  no  other  manner  be  justified  or  accounted 
for,  than  upon  the  supposition,  that  a  national  union  for  national 
purposes  already  existed,  and  that  the  congress  was  invested  with 
sovereign  power  over  all  the  colonies  for  the  purpose  of  preserving 
the  common  rights  and  liberties  of  all.  They  accordingly  autho- 
rized general  hostilities  against  the  persons  and  property  of  British 

*  3  Dall.  R.  80,  81,  90,  91,  109,  110,  111,  117. 
t  3  Dall.  H.91. 


40  LECTURES    ON 

the  congress  was  in  fact  not  national  but  federative  in  its 
character.  But  this  is  placed  beyond  all  reasonable  question 
by  two  considerations,  to  neither  of  which  has  the  learned 
author  thought  fit  to  advert. 

subjects ;  tliey  opened  an  extensive  commerce  with  foreign  coun- 
tries, regulating  the  whole  subject  of  imports  and  exports ;  they 
authorized  the  formation  of  new  governments  in  the  colonies ;  and 
finally  they  exercised  the  sovereign  prerogative  of  dissolving  the 
allegiance  of  all  colonies  to  the  British  crown.  The  validity  of 
these  acts  was  never  doubted,  or  denied  by  the  pef)ple.  On  the 
contrary,  they  became  the  foundation,  upon  which  the  superstruc- 
ture of  the  liberties  and  independence  of  the  United  States  has 
been  erected.  Whatever,  then,  may  be  the  theories  of  ingenious 
men  on  the  subject,  it  is  historically  true,  that  before  the  declara- 
tion of  independence  these  colonies  were  not,  in  any  absolute  sense, 
sovereign  states ;  that  that  event  did  not  find  them  or  make  them 
such;  but  that  at  the  moment  of  their  separation  they  were  under 
the  dominion  of  a  superior  controlling  national  government,  whose 
powers  were  vested  in  and  exercised  by  the  general  congress  with 
the  consent  of  the  people  of  all  the  states.* 

§  215.  From  the  moment  of  the  declaration  of  independence,  if 
not  for  most  purposes  at  an  antecedent  period,  the  united  colonies 
must  be  considered  as  being  a  nation  de  facto,  having  a  general 
government  over  it  created,  and  acting  by  the  general  consent  of 
the  people  of  all  the  colonies.  The  powers  of  that  government 
were  not,  and  indeed  could  not  be  well  defined.  But  still  its  ex- 
clusive sovereignty,  in  many  cases,  was  firmly  established;  and 
its  controlling  power  over  the  states  was  in  most,  if  not  in  all  na- 
tional measures,  universally  admitted. t  Tlie  articles  of  confede- 
ration, of  which  we  shall  have  occasion  to  speak  more  hereafter, 
were  not  prepared  or  adopted  by  congress  until  November  1777  ;t 
they  were  not  signed  or  ratified  by  any  of  the  states  until  July 
1778;  and  they  were  not  ratified,  so  as  to  become  obligatory  upon 
all  the  states,  until  March  1781.     In  the  intermediate  time,  con- 

*  This  whole  subject  is  very  amply  discussed  by  Mr.  Dane  in  his  Appendix  to 
the  9th  volume  of  his  Aliridaement  of  the  Laws  ;  and  many  of  his  views  coin- 
cide witli  tliose  stati'd  in  the  ti!\t.  The  whole  of  that  Appendix  is  worthy  of 
the  perusal  of  every  constitutional  lawyer,  even  though  he  niisiht  ditfer  from 
some  of  the  conclusions  of  the  learned  author.  He  will  there  find  much  rea- 
soning from  documentary  evidence  of  a  public  nature,  which  has  not  hitherto 
been  presented  in  a  condensed  or  accurate  shape. 

Some  interesting  views  of  this  subject  are  also  presented  in  president  Mon- 
roe's message  on  internal  improvements,  on  the  4th  of  May  1822,  appended  to 
his  message  respecting  the  Cumb(Mland  road.    See,  especially,  pages  8  and  9. 

Wlien  Mr.  chief  justice  Marshall,  in  On-dcn  v.  Oibhons,  (9  Wheat.  R.  187,) 
admits,  that  the  states,  before  the  formation  of  the  constitution,  were  sovereign 
and  independent,  and  were  cimnectcd  with  each  other  only  by  a  league,  it  is 
manifest,  that  he  uses  the  word  "  sovereign"  in  a  very  restricted  sense.  Under 
the  confederation  there  were  many  iimitalions  upon  tfie  powers  of  the  states. 

t  See  PcnlmUim  v.  Dnaiie,  3  Dall.  R.  54  ;  Ware  v.  Ilijltun,  '.i  Uall.  199,  per  Chase 
J.  Seethe  Circular  Letter  of  Congress,  13th  September  1779 ;  5  Jour.  Cong. 
341,348,  349. 

I  Jour,  of  Cong.  1777,  p.  502. 


CONSTITUTIONAL    LAW.  41 

In  the  first  place,  it  is  an  historical  fact  that  these  very 
conventions,  which  in  some  of  the  states  elected  members 
to  the  congress  of  1774,  constituted  at  that  time  the  legis- 

gress  continued  to  exercise  the  powers  of  a  general  government, 
whose  acts  were  binding  on  all  the  states.  And  tliough  they  con- 
stantly admitted  the  states  to  be  "  sovereign  and  independent  com- 
munities;"* yet  it  must  be  obvious,  that  the  terms  were  used  in 
the  subordinate  and  limited  sense  already  alluded  to ;  for  it  was 
impossible  to  use  them  in  any  other  sense,  since  a  majority  of  the 
states  could  by  their  public  acts  in  congress  control  and  bind  the 
minority.  Among  the  exclusive  powers  exercised  by  congress, 
were  tlie  power  to  declare  war  and  make  peace  ;  to  authorize  cap- 
tures;  to  institute  appellate  prize  courts;  to  direct  and  control  ail 
national,  military,  and  naval  operations ;  to  form  alliances,  and 
make  treaties ;  to  contract  debts,  and  issue  bills  of  credit  upon  na- 
tional account.  In  respect  to  foreign  governments,  we  were  poli- 
tically known  as  the  United  States  only  ;  and  it  was  in  our  national 
capacity,  as  such,  that  we  sent  and  received  ambassadors,  entered 
into  treaties  and  alliances,  and  were  admitted  into  the  general 
community  of  nations,  who  might  exercise  the  right  of  bellige- 
rents, and  claim  an  equality  of  sovereign  powers  and  prerogatives. t 
§  216.  In  confirmation  of  these  views,  it  may  not  be  without 
use  to  refer  to  the  opinions  of  some  of  our  most  eminent  judges, 
delivered  on  occasions,  which  required  an  exact  examination  of 
the  subject.  In  Chisholm's  Executors  v.  The  State  of  Georgia,  (2 
Dall.  419,  470,+)  Mr.  chief  justice  Jay,  who  was  equally  distin- 
guished as  a  revolutionary  statesman  and  a  general  jurist,  express- 
ed himself  to  the  following  effect:  "The  revolution,  or  rather  the 
declaration  of  independence,  found  the  people  already  united  for 
general  purposes,  and  at  the  same  time  providing  for  their  more  do- 
mestic concerns  by  state  conventions,  and  other  temporary  arrange- 
ments. From  the  crown  of  Great  Britian  the  sovereignty  of  their 
country  passed  to  the  people  of  it;  and  it  was  then  not  an  uncom- 
mon opinion,  that  the  unappropriated  lands,  which  belonged  to 
that  crown,  passed,  not  to  the  people  of  the  colony  or  states,  with- 
in whose  limits  they  were  situated,  but  to  the  rchole  people.  On 
whatever  principle  this  opinion  rested,  it  did  not  give  way  to  the 
other ;  and  thirteen  sovereignties  were  considered  as  emerging  from 
the  principles  of  the  revolution,  combined  by  local  convenience 
and  considerations.  The  people,  nevertheless,  continued  to  consi- 
der themselves,  in  a  national  point  of  view,  as  one  people;  and 
they  continued  without  interruption  to  manage  their  national  con- 
cerns accordingly."  In  Penhalloicv.  Doane,  (3  Dall.  R.  54, ||)  Mr. 
justice  Patterson  (who  was  also  a  revolutionary  statesman)  said, 
speaking  of  the  period  before  the  ratification  of  the  confederation  : 

*  See  Letter  of  17th  Nov.  1777,  by  Congress,  recoinmending  tlie  articles  of 
confederation  ;  Journal  of  1777,  p.  513,  514. 

t  1  Anier.  Museum,  15  ;  1  Kent.  Conim.  197, 198,  199. 
j  S.  C.  1  Peters's  Cond.  R.  635. 
II  S.  C,  1  Peters's  Cond.  Rep.  21. 

4* 


42  LECTURES    ON 

'  lative  bodies  of  the  respective  states.  They  had  been  sub- 
stituted for  the  legislatures  appointed  under  the  crown,  and 
passed  laws  of  a  municipal  nature  as  well  as  of  a  political 

"The  powers  of  congress  were  revolutionary  in  their  nature,  aris- 
ing out  of  events  adequate  to  every  national  emergency,  and  co- 
extensive with  the  object  to  be  attained.  Congress  was  the  gene- 
ral, supreme,  and  controlling  council  of  the  nation,  the  centre  of 
the  union,  the  centre  of  force,  and  the  sun  of  the  political  system. 
Congress  raised  armies,  fitted  out  a  navy,  and  prescribed  rules  for 
their  government,  »tc.  &c.  Tliese  high  acts  of  sovereignty  were 
submitted  to,  acquiesced  in,  and  approved  of  by  the  people  of  Ame- 
rica, <fec.  &c.  Tlie  danger  being  imminent  and  common,  it  be- 
came necessary  for  the  people  or  colonies  to  coalesce  and  act  in 
concert,  in  order  to  divert,  or  break  tiie  violence  of  the  gathering 
storm.  They  accordingly  grew  into  union,  and  formed  one  great 
political  body,  of  which  congress  was  the  directing  principle  and 
soul,  &c.  &c.  The  truth  is,  that  the  states,  individually,  were  not 
known,  nor  recognized  as  sovereign  by  foreign  nations,  nor  are 
they  now.  The  states  collectively  under  congress,  as  their  con- 
necting point  or  head,  were  acknowledged  by  foreign  powers,  as 
sovereign,  particularly  in  that  acceptation  of  the  term,  which  is 
applicable  to  all  great  national  concerns,  and  in  the  exercise  of 
which  other  sovereigns  would  be  more  immediately  interested.  In 
Ware  v.  Hijlton,  (3  Dall.  199,^)  Mr.  justice  Chase  (himself  also  a  re- 
volutionary statesman)  said  :  "  It  has  been  inquired,  what  powers 
congress  possessed  from  tiie  first  meeting  in  September  1774,  until 
the  ratification  of  the  confederation  on  the  1st  of  March  1781.  It 
appears  to  me,  that  the  powers  of  congress  during  that  whole  pe- 
riod were  derived  from  the  people  they  represented,  expressly  given' 
through  the  medium  of  their  state  conventions  or  state  legisla-' 
I  tures ;  or,  that  after  they  were  exercised,  they  were  impliedly  ra- 
tified by  the  acquiescence  and  obedience  of  the  people,  Sec.  The 
powers  of  congress  originated  from  necessity,  and  arose  out  of  it, 
and  were  only  limited  by  events ;  or,  in  other  words,  they  were 
revolutionary  in  their  nature.  Their  extent  depended  on  the  exi- 
gencies and  necessities  of  public  affairs.  I  entertain  this  general 
idea,  that  the  several  states  retained  all  internal  sovereignty;  and 
that  congress  properly  possessed  the  rights  of  external  sov.>reignty. 
In  deciding  on  the  powers  of  congress,  and  of  the  several  states 
before  the  confederation,  I  see  but  one  safe  rule,  namely,  that  all 
the  powers  actually  exercised  by  congress  before  that  period  were 
rightfully  exercised,  on  the  presumption  not  to  be  controverted,  that 
they  were  so  authorized  by  the  peojjle  they  represented,  by  an  ex- 
press or  implied  grant ;  and  tliat  all  the  powers  exercised  by  the 
state  conventions  or  state  legislatures  were  also  rightfully  exercis- 
ed, on  the  same  presumption  of  authority  from  the  people."! 

*  S.  C.  1  Peters's  Cond.  R.  99. 

t  See  also  1  Kent.  Comni.  Lect.  10,  p.  196 ;  President  Monroe's  Exposition 
and  Message,  4th  of  May  lb22,  p.  8,  9,  10,  11. 


CONSTITUTIONAL    LAW.  43 

character.  They  were  as  much  the  government  de  facto, 
then,  as  the  legislature  at  ordinary  periods,  and  in  the  ap- 
pointment of  delegates  to  congress,  they  no  more  acted  in 
virtue  of  original  powers,  derived  from  the  people,  than  the 
ordinary  legislature  in  ordinary  times.  They  constituted, 
indeed,  the  legislature  for  those  extraordinary  times;  for  the 
interregnum  ;  for  the  revolutionary  struggle.  The  appoint- 
ment of  members  of  congress  by  them  was  therefore  no 
more  the  direct  action  of  the  people,  as  contradistinguished 
from  the  government,  than  that  appointment  by  the  legis- 
latures in  other  states.  Still  less  was  any  such  appoint- 
ment the  act  of  the  people  in  a  national  character,  as  one 
people,  as  contradistinguished  from  their  act  in  their  dis- 
tinct political  characters,  as  independent  states.  This 
brings  me  to  observe, 

Secondly,  that  on  the  question  whether  the  appointment 
of  members  of  congress  was  an  act  of  the  people,  as  con- 
stituting one  nation  or  not,  it  is  utterly  unimportant  whe- 
ther it  was  made  by  legislature  or  convention, — by  the  re- 
presentatives of  the  people,  or  even  by  the  people  them- 
selves in  plenis  commitiis.  Justice  Story  tells  us  they  were 
acting  "  in   their   primary  sovereign  capacity,  and  with- 

§  2]  7.  In  respect  to  the  powers  of  the  continental  congress  exer- 
cised before  the  adoption  of  the  articles  of  confederation,  fe-w  ques- 
tions were  judicialy  discussed  during  the  revolutionary  contest; 
for  men  had  not  leisure  in  the  heat  of  war  nicely  to  scrutinize  or 
weigh  such  subjects ;  inter  arma  silent  leges.  The  people,  re- 
lying on  the  wisdom  and  patriotism  of  congress,  silently  acqui- 
esced in  whatever  authority  they  assumed.  But  soon  after  the  or- 
ganization of  the  present  government,  the  question  was  most  ela- 
borately discussed  before  the  supreme  court  of  the  United  States,  in 
a  case  calling  for  an  e.xposition  of  the  appellate  jurisdiction  of  con- 
gress in  prize  causes  before  the  ratification  of  the  confederation.* 
The  result  of  that  examination  was,  as  the  opinions  already  cited 
indicate,  that  congress,  before  the  confederation,  possessed,  by  the 
consent  of  the  people  of  the  United  States,  sovereign  and  supreme 
powers  for  national  purposes ;  and  among  others,  the  supreme 
powers  of  peace  and  war,  and,  as  an  incident,  the  right  of  enter- 
taining appeals  in  the  last  resort  in  prize  causes,  even  in  opposition 
to  state  legislation.  And  that  the  actual  powers  exercised  by  con- 
gress, in  respect  to  national  objects,  furnished  the  best  exposition 
of  its  constitutional  authority,  since  they  emanated  from  the  re- 
presentatives of  the  people,  and  were  acquiesced  in  by  the  people. 

*Pen.haUcnB  v.  Doane.,2  DaU.  54,  80,  83,  90,  91,  94,  109,110,111,112,117; 
Journals  of  Congress,  March  1779,  p.  86  to  88  ;  1  Kent.  Oomm.  198, 199. 


44  LECTURES    ON 

out  the  intervention  of  the  ordinary  functionaries."  Ad- 
mit it.  But  in  what  sovereign  capacity  1  In  the  capacity 
f  of  one  people,  composing  one  political  society,  and  one 
sovereignty  throughout  British  America,  or  as  separate 
people  of  distinct  political  societies,  uniting  together  as 
such  for  common  defence  and  the  maintenance  of  rights 
which  were  common  to  them  all?  This  is  the  true  issue, 
and  history  leaves  no  doubt  how  it  should  be  decided.  The 
colonies  had  always  been  independent  of  each  other,  though 
subject  to  the  crown.  The  king  was  the  only  knot  which 
bound  them  together.  Did  the  cutting  off  the  common 
head  unite  them  into  one  body?  Did  cutting  the  knot  have 
the  effect  of  binding  them  more  closely  instead  of  leaving, 
to  each,  entire  sovereignty  and  independence,  except  so  far 
as  it  might  be  voluntarily  vested  in  a  common  agent,  the  con- 
gress of  the  United  States  ?  Surely  not.  By  cutting  the  only 
bond  which  served  to  hold  them  together,  they  became  se- 
parate and  independent  states.  Their  rebellion  was  not  as 
one  people,  but  as  thirteen  states.  They  were  not  bound 
to  rebel  together ;  for  Canada,  which  stood  in  the  same 
position  with  themselves,  never  did  rebel,  and  the  thirteen 
states  had  no  right  to  compel  her  to  do  so. (6)  We  can 
look  upon  them  as  acting  m  no  other  manner  than  as  com- 
munities distinct  and  independent  of  each  other,  each  re- 
solving for  itself,  judging  for  itself,  acting  for  itself  And 
so  they  looked  upon  themselves.  They  were  commanded 
by  no  authority  to  assemble  in  congress.  The  measure 
was  simply  recommended  by  one  of  the  sister  states.  The 
members  were  appointed  in  each  state  according  to  its  own 

(/y)  "  When  tlie  obnoxious  acts  i>assed,"  says  judge  Iredell,  3 
Dall.  92,  "  if  the  people  in  each  province  had  chosen  to  resist  sc- 
parately,  they  undoubtedly  had  equal  right  to  do  so  as  to  join  in 
general  measures  of  resistance  with  the  peojjle  of  the  other  pro- 
vinces, however  unwise  and  destructive  sucli  a  policy  might  and 
undoubtedly  would  have  been." — "If  congress  previously  to  the 
articles  of  confederation  possesed  any  authority,  it  was  an  authori- 
ty derived  from  the  people  of  each  province  in  the  first  instance." 
"  I  conclude,  therefore,  that  every  particle  of  authority  wliich  ori- 
ginally resided  either  in  congress,  or  in  any  branch  of  the  state  go- 
vernments, was  derived  from  the  people  of  each  province  :  that  this 
authority  was  conveyed  by  each  body  politic  separately,  and  not  by 
all,  the  people  in  the  several  provinces  or  states  jointly,  and  of 
course  that  no  authority  could  be  conveyed  to  tlie  whole  but  that 
which  previously  was  possessed  by  the  several  parts,"  «S:c. 


CONSTITUTIONAL    LAW.  45 

pleasure,  under  its  own  electoral  regulations,  and  with  pow- 
ers and  discretion  prescribed  by  each,  and  were,  moreover, 
liable  to  recall.  The  members  when  elected  voted  by 
states  ;(c)  giving  to  the  smallest  state  in  the  Union  the  same 
weight  in  the  deliberations  of  the  body  with  the  largest. 
This  is  of  itself  conclusive  of  the  character  of  the  body', 
as  representing,  not  one  great  people,  but  thirteen  indepen- 
dent states,  who  thus  united  in  action  and  in  council  for 
common  benefit.  But  this  is  not  all  : — every  thing  in  our  re- 
volutionary annals  distinctly  proves,  that  congress  repre- 
sented states  alone,  and  acted  only  upon  states.  Its  wants 
were  supplied  by  requisitions  :  its  commissions  were  coun- 
tersigned by  the  states.  It  powers  were  at  first  little  more 
than  advisory,  though  the  exigencies  of  the  revolution 
compelled  them  on  many  occasions  to  extend  them.  3 
Dall.  91.  As  soon  as  the  provinces  took  up  arms,  each  state 
stood  of  itself  as  rebel,  or  quasi  sovereign  :  each  in  that 
character  assumed  upon  itself  to  act ;  each  in  that  charac- 
ter might  have  treated  and  made  peace.  That  character 
they  held  before  a  congress  was  appointed.  In  that  cha- 
racter they  stood  when  it  was  created.  It  was  the  creature 
of  those  who  were  de  facto  sovereign ;  and  all  its  powers 
were  not  only  derivative,  but  derivative  from  bodies  politic, 
or  societies  of  people  distinct  and  separate,  in  the  assumed 
character  of  sovereign,  during  the  convulsions  of  the  time. 
Notwithstanding  the  existence,  also,  of  the  congress,  the 
states  exercised  every  attribute  of  sovereignty.  Among  the 
memorable  instances  of  this  was  the  act  of  this  venerable 
commonwealth,  the  common  mother  of  us  all,  in  declaring 
herself  independent  anterior  to  the  4th  of  July  1776,  and 
before  that  measure  had  been  adopted  by  the  thirteen  states 
in  congress  assembled.  Such  was  assuredly  the  effect  of 
the  resolutions  of  the  Virginia  convention  on  the  15th  day 
of  May  1776.  By  those  resolutions  it  was  distinctly  de- 
clared, that  "  there  was  no  alternative  left  but  abject  sub- 
mission or  total  separation  ;"  it  was  therefore  recommend- 
ed to  congress  to  make  a  general  declaration  of  indepen- 
dence for  all  the  states,  and  a  committee  was  appointed  to 
prepare  a  declaration  of  rights  and  apian  of  government; 
all  of  which  was  equivalent  to  an  assertion  by  the  state  of 

(c)  ]  Story,  §  202. 


46 


LECTURES    ON 


her  right  to  self-government,  and  to  take  her  stand  as  an 
independent  power  among  the  nations  of  the  earth.  And 
so  the  ablest  minds  have  ever  regarded  it.  Postponing  for 
a  while,  a  quotation  from  judge  Upshur's  Review  of  a  most 
interesting  passage  upon  this  subject,  I  shall  here  offer  the 
vigorous  remarks  of  a  very  able  judge  in  support  of  my 
positions.  They  were  delivered  in  the  celebrated  case  of 
Ware  v.  Hylton,  3Dall.  199.  In  that  case,  it  is  said  by  Mr. 
Marshall,  (afterwards  chief  justice  of  the  United  States,) 
that  it  had  been  conceded  in  the  argument  that  Virginia  in 
1777  was  an  independent  state,  and  as  such,  competent  to 
pass  confiscation  laws.  In  delivering  liis  opinion  in  the 
case,  judge  Chase  declares  the  right  of  confiscation  (which 
is  a  jMs  helli,  belonging  to  the  sovereign  alone,)  to  have 
resided  only  in  the  legislature  of  Virginia  in  relation  to  the 
claims  of  her  enemy's  people  within  her  territories.  He 
then  proceeds :  "  It  is  worthy  of  remembrance,  that  dele- 
gates and  representatives  were  elected  by  the  people  of  the 
several  counties  and  corporations  of  Virginia,  to  meet  in 
general  convention,  for  the  purpose  of  framing  a  new  go- 
vernment, by  the  authority  of  the  jjcople  only ;  and  that  the 
said  convention  met  on  the  Cth  of  May,  and  continued  in 
session  until  the  5th  of  July  1776;  and,  in  virtue  of  their 
delegated  power,  established  a  constitution,  or  form  of  go- 
vernment, to  regulate  and  determine  by  whom,  and  in  tvhat 
manner,  the  authority  of  the  people  of  Virginia  was  there- 
after to  be  executed.  As  the  people  of  that  country  were 
the  genuine  source  and  fountain  of  all  power,  that  could 
be  rightfully  exercised  within  its  limits ;  they  had  there- 
fore an  unquestionable  right  to  grant  it  to  whom  they 
pleased,  and  under  what  restrictions  or  limitations  they 
thought  proper.  The  people  of  Virginia,  by  their  con- 
stitution or  fundamental  law,  granted  and  delegated  all 
their  supreme  civil  power  to  a  legislature ,  an  executive  and 
^.  judiciary  ;  The  frst  to  make ;  the  second  to  execute ;  and 
the  last  to  declare  or  expound,  the  laws  of  the  common- 
wealth. This  abolition  of  the  old  government,  and  this 
establishment  of  a  new  one,  was  the  highest  act  of  power 
that  any  people  can  exercise.  From  the  moment  the  peo- 
ple of  Virginia  exercised  this  power,  all  dependence  on, 
and  connexion  with,  Great  Britain,  absolutely  and  forever 
ceased;  and  no  formal  declaration  of  independence  was 


CONSTITUTIONAL    LAW.  47 

necessary,  although  a  decent  respect  for  the  opinions  of 
mankind  required  a  declaration  of  the  causes,  which  im- 
pelled the  separation  ;  and  was  proper  to  give  notice  of  the 
event  to  the  nations  of  Europe.  I  hold  it  as  unquestiona- 
ble, that  the  legislature  of  Virginia,  established  as  I  have 
stated  by  the  authority  of  the  people,  was  forever  thereaf- 
ter invested  with  the  supreme  and  sovereign  poioer  of  the 
state,  and  with  authority  to  make  any  laws  in  their  discre- 
tion, to  affect  the  lives,  liberties  and  property  of  all  the 
citizens  of  that  commonwealth,  with  this  exception  only, 
that  such  laws  should  not  be  repugnant  to  the  constitution 
or  fundamental  law,  which  could  be  subject  only  to  the 
control  of  the  body  of  the  nation,  in  cases  not  to  be  de- 
fined, and  which  will  ahcays  provide  for  themselves.  The 
legislative  power  of  every  nation  can  only  be  restrained  by 
its  own  constitution :  and  it  is  the  duty  of  its  courts  of  jus- 
tice not  to  question  the  validity  of  any  law  made  in  pur- 
suance of  the  constitution.  There  is  no  question  but  the 
act  of  the  Virginia  legislature  (of  the  2Uth  of  October 
1777)  was  within  the  authority  granted  to  them  by  the  peo- 
ple of  that  country  ;  and  this  being  admitted,  it  is  a  neces- 
sary result,  that  the  law  is  obligatory  on  the  courts  of  Vir- 
ginia, and,  in  my  opinion,  on  the  courts  of  the  United 
States.  If  Virginia,  as  a  sovereign  state,  violated  the  an- 
cient or  modern  law  of  nations,  in  making  the  law  of  the 
20th  of  October  1777,  she  was  answerable  in  her  political 
capacity  to  the  British  nation,  whose  subjects  have  been 
injured  in  consequence  of  that  law.  Suppose  a  general 
right  to  confiscate  British  property,  is  admitted  to  be  in 
congress,  and  congress  had  confiscated  all  British  property 
within  the  United  States,  including  private  debts,  would  it 
be  permitted  to  contend  in  any  court  of  the  United  States, 
that  congress  had  no  power  to  confiscate  such  debts,  by 
the  modern  law  of  nations?  If  the  right  is  conceded  to 
be  in  congress,  it  necessarily  follows,  that  she  is  the  judge 
of  the  exercise  of  the  right,  as  to  the  extent,  mode  and  man- 
ner. The  same  reasoning  is  strictly  applicable  to  Virgi- 
nia, if  considered  a  sovereign  nation ;  provided  she  had 
not  delegated  such  power  to  congress,  before  the  making 
of  the  law  of  October  1777,  which  I  will  hereafter  consi- 
der. 


48  LECTURES    ON 

"  In  June  1776,  the  convention  of  Virginia  formally  de- 
clared, that  Virginia  was  a  free,  sovereign  and  independent 
state;  and  on  the  4th  of  July  177G,  following,  the  Uni- 
ted States  in  congress  assembled,  declared  the  thirteen 
united  colonies  free  and  independent  ^states ;  and  that  as 
such,  they  had  full  power  to  levy  war,  conclude  peace,  &lc. 
I  consider  this  as  a  declaration,  not  that  the  united  colonies 
jointly,  in  a  collective  capacity,  were  independent  states, 
&,c.,  but  that  each  of  them  was  a  sovereign  and  indepen- 
dent state ;  that  is,  that  each  of  them  had  a  right  to  govern 
itself  by  its  own  authority,  and  its  own  laws,  without  any 
control  from  any  other  power  upon  earth. 

"  Before  these  solemn  acts  of  separation  from  the  crown 
of  Great  Britain,  the  war  between  Great  Britian  and  the 
united  colonies,  jointly  and  separately ,  was  a  civil  war ; 
but  instantly,  on  that  great  and  ever  memorable  event,  the 
war  changed  its  nature,  and  became  a  public  war  between 
independent  governments  ;  and  immediately  thereupon  all 
the  rights  oi  public  war  (and  all  the  other  rights  of  an  in- 
dependent nation)  attached  to  the  government  of  Virginia  ; 
and  all  the  former  poUticcd  connexion  between  Great  Bri- 
tian and  Virginia,  and  also  between  their  respective  sub- 
jects, were  totally  dissolved;  and  not  only  the  tioo  iiations, 
but  all  the  subjects  of  each,  were  in  a  state  of  war;  pre- 
cisely as  in  the  present  war  between  Great  Britain  and 
France.  Vatt.  Lib.  3,  c.  18,  s.  292  to  295 ;  lib.  3,  c.  5, 
s.  70,  72  and  73. 

"  From  the  4th  of  July  1776,  the  American  states  were 
de  facto,  as  well  as  de  jure,  in  the  possession  and  actual 
exercise  of  all  the  rights  of  independent  governments. 
On  the  6th  of  February  1778,  the  king  of  France  entered 
into  a  treaty  of  alliance  with  the  United  States ;  and  on 
the  8th  of  October  1782,  a  treaty  of  amity  and  commerce 
was  concluded  between  the  United  States  and  the  states 
general  of  the  United  Provinces.  I  have  ever  considered 
it  as  the  established  doctrine  of  the  United  States,  that  their 
independence  originated  from,  and  commenced  with,  the 
declaration  of  congress,  on  the  4th  of  July  1776;  and  that 
no  other  period  can  be  fixed  on  for  its  conunencement ;  and 
that  all  laws  made  by  the  legislatures  of  the  several  states, 
after  the  declaration  of  independence,  were  the  laws  of 
sovereign  and  independent  governments." 


CONSTITUTIONAL    LAW.  49 

To  these  remarks  of  judge  Chase,  it  may  be  added  that 
in  Penhallow  v.  Doane,{d)  judge  Iredell  very  clearly  sus- 
tains the  same  positions,  contending  that  the  jus  belli  be- 
longed at  first  to  the  states  as  sovereign,  and  was  not  pos- 
sessed by  congress  unless  given  by  all  the  states. 

Notwithstanding  these  strong  judicial  opinions,  and  the 
historical  facts  on  which  they  rest,  we  find  Mr.  Story  re- 
iterating the  remark  "  that  antecedent  to  the  declaration  of 
independence,  none  of  the  colonies  pretended  to  be  sove- 
reign states  in  the  sense  in  which  the  term  sovereign  is 
sometimes  applied  to  states:"  and  again,  "  before  the  re- 
volution none  were  independent  or  sovereign  communi- 
ties;" and  again,  "  from  the  moment  of  the  declaration  of 
independence,  if  not  for  most  purposes,  at  an  antecedent 
period,  the  United  Colonies  must  be  considered  as  a  nation 
de  facto,  having  a  general  government  over  it  created,  and 
acting  by  the  general  consent  of  the  people  of  all  the 
colonies;"  obviously  meaning  as  one  nation.  And  again, 
"  Before  the  declaration  of  independence  the  colonies 
were  not,  in  any  absolute  sense,  sovereign  states.  That 
event  did  not  find  or  make  them  such;  but  at  the  moment 
of  separation, (e)  they  were  under  the  dominion  of  a  supe- 
rior controlling  national  government,  whose  powers  were 
vested  in  and  exercised  by  the  general  congress  with  the 
consent  of  the  people  of  all  the  states  ;"  meaning  obviously 
as  one  people. 

These  opinions  are  utterly  at  war  with  the  first  principles 
of  our  federal  government,  as  they  have  been  received  and 
handed  down  to  us  by  the  wisest  and  purest  statesmen  of 
both  parties.  According  to  these  views,  the  states  never  have 
been  sovereign  and  independent !  According  to  these 
views,  "  at  the  moment  of  the  separation  of  the  colonies 
from  Great  Britain,  they  were  under  the  dominion  of  a  su- 
perior controlling   national  government{f)  whose  poivers 

(<Z)3Dal].  92,93,94. 

(e)  "  From  the  crown  of  Great  Britain  the  sovereignty  of  tliis 
country  passed  to  the  people  of  it,"  says  chief  justice  Jay  very 
truly.  But  to  what  people?  Not  to  the  whole  people  of  the  Uni- 
ted States  as  one  people,  for  there  was  none  such,  but  to  the  people 
of  the  respective  states.     See  post. 

(/)  Anterior  to  the  declaration  of  independence  the  states  still 
recognized  the  supremacy  of  England,  and  still  looked  to  her  as 
their   sovereign.     Congress  was  in  no  sense  a  sovereign  or  a  go- 

5 


50  LECTURES    ON 

iverc  vested  in  and  exercised  by  the  general  congress  with 
the  consent  of  the  people  of  all  the  states ! ! !"  The 
states  then  are  not  the  fountains  of  power ;  they  are  not 
the  grantors,  but  the  grantees ;  not  the  dispensers,  but  the 
recipients ;  and  as  a  fair  corollary,  from  these  positions,  all 
powers  not  granted  to  the  states,  are  reserved  to  the  gene- 
ral government ! ! ! 

It  is  obvious  that  these  startling  principles  should  be 
carefully  examined  before  they  are  adopted.  However 
great  the  name  under  which  they  are  put  forth,  it  is  not 
greater  than  those  of  the  wise  and  good  who  have  gone 
before  him,  who  have  ever  looked  upon  the  states  as  great 
political  bodies,  endued  with  all  the  attributes  of  sove- 
reignty, and  the  source  from  whence  the  general  govern- 
ment of  the  Union  draws  all  its  powers. 

Let  us  then  first  examine  the  position  that  at  the  mo- 
ment of  the  separation,  in  other  words,  at  the  date  of  the 
declaration  of  independence,  "the  colonies  were  under 
the  dominion  of  a  superior  controlling  national  government, 
whose  powers  were  vested  in  and  exercised  by  the  general 
congress  with  the  consent  of  the  people  of  all  the  states." 

I  have  already  sufficiently  shewn  that  under  British  do- 
mination, the  colonies,  though  subject  to  the  crown,  were 
independent  of  each  otiier ;  and  that  the  cutting  the  only 
bond  which  in  any  manner  connected  them,  could  not  have 
the  etfect  of  binding  them  more  closely  than  they  had  been 
bound  before  under  their  common  head.  Its  obvious  ef- 
fect, on  the  contrary,  was  to  separate  entirely  the  thirteen 
distinct  political  societies,  until  by  some  act  of  their  own 
they  should  form  a  connexion,  more  or  less  close,  accord- 
ing to  their  pleasure.  If  this  was  so,  it  implies  the  exis- 
tence of  sovereignty  in  each  from  the  mprnent  of  separa- 
tion.    Judge  Story  quotes  Ch.  justice  Jay,  who  says  that 

vernment,  but  tlie  great  organ  of  a  revolution,  whose  termination 
was  yet  hidden  from  mortal  ken.  The  war  was,  until  July  4, 1776, 
a  civil  war,  and  congress  was  not  looked  upon  by  foreign  powers 
as  competent  to  be  treated  with  until  that  date,  nor  did  the  states 
indeed  consider  themselves  as  individually  or  collectively  consti- 
tuting a  nation.  At  the  moment  of  tlie  declaration  each  state 
emerged  into  sovereignty  and  independence,  and  from  that  mo- 
ment till  the  confederation  congress  was  their  organ,  and  had  no 
legitimate  authority  but  that  which  their  commissions  gave  to  the 
delegates  of  each. 


CONSTITUTIONAL    LAW.  51 

from  the  crown  of  Great  Britain  the  sovereignty  of  this 
country  passed  to  the  people  of  it.  And  this  is  true  when 
properly  understood.  A  revolting  colony  in  throwing  off 
the  authority  of  the  mother  country,  becomes  itself  in- 
vested with  the  attributes  of  sovereignty.  Each  of  the 
thirteen  revolting  colonies,  therefore,  in  throwing  off  the 
authority  of  Great  Britain  became  itself  a  sovereign.  The 
crown  had  the  sovereignty  over  each,  but  as  they  were 
communities  independent  of  each  other,  the  sovereignty 
when  thrown  off  passed  to  the  people  of  each,  and  not  to 
the  people  of  the  whole,  for  they  never  had  constituted  one 
whole.  The  ichole  continent  was  not  our  country.  Virgi- 
nia was  our  country,  and  the  government  of  Virginia  passed 
of  course  to  the  people  of  Virginia,  and,  accordingly,  in 
this  same  passage  we  find  chief  justice  Jay  admitting  that 
"  thirteen  sovereigns  were  considered  as  emerging  from 
the  principles  of  the  revolution,  combined  by  local  conve- 
nience and  considerations."  They  were  indeed  combined, 
but  combined  as  states  or  sovereigns,  investing  in  a  gene- 
ral congress  formed  by  their  respective  delegates  (repre- 
senting them  as  states)  a  government  for  the  conduct  of 
their  combined  interests  amid  the  throes  of  a  revolution. 
What  was  the  character  of  this  government,  of  this  na- 
tional authority,  vested  in  the  general  congress  ?  First,  in 
regard  to  its  formation,  was  it  national  or  confederate? 
The  answer  is  easy  ;  it  was  confederate  as  far  as  it  was  a  go- 
vernment at  all.  The  delegates  were  appointed  by  the  states, 
not  by  the  people;  sometimes,  indeed,  by  conventions,  but 
they  were  conventions,  who  as  much  represented  the  state 
as  the  legislatures  could  do.  Moreover,  in  the  delibera- 
tions of  congress  they  voted  by  states,  the  smallest  having 
,equal  weight  with  the  largest;  a  test  of  confederate  cha- 
racter which  has  been  universally  admitted.  Moreover, 
each  delegation  obeyed  its  own  state ;  each  was  removable 
by  its  own  state,  so  that  the  congress  partook  in  no  small 
degree  of  the  character  of  a  congress  of  ambassadors. 
But,  secondly,  this  general  congress,  (if  government  it 
could  be  called)  was  merely  revolutionary.  It  grew  up  out  of 
the  necessities  of  the  times.  It  was  not  constituted  or  es- 
tablished as  a  government.  It  was  assembled  upon  re- 
commendation merely,  which  no  state  was  bound  to  obey. 
It  acted  by  recommendation  mainly.     It  had  no  prescribed 


52  LECTURES    ON 

authority.  Its  powers  were  not,  and  could  not,  well  indeed 
be  defined.  It  continued  to  exercise  the  powers  of  a  ge- 
neral government,  whose  acts  were  respected  and  concur- 
red in  by  the  states.  It  constantly  admitted  the  states  to 
be  sovereign  and  independent  communities.  (I  Story,  p. 
204.)  It  exercised  its  powers  by  a  sufferance  growing  out 
of  the  situation  of  the  country,  which  had  not  yet  been 
able  to  form  any  regular  government;  and  the  acquiescence 
of  the  states  constituted  its  justification  for  the  broad 
powers  it  often  found  itself  compelled  to  exercise.  Such 
were  the  powers  of  war  and  peace  ;  of  forming  treaties  and 
alliances;  authorizing  captures;  establishing  courts  of 
prizes,  &c.  None  of  these  were  conferred,  hut  they  were 
exercised  and  acquiesced  in,  because  the  exigencies  of  the 
cause  in  which  we  were  engaged  in  common,  imperiously 
demanded  it.  Lastly,  this  revolutionary  government  was 
ephemeral.  The  withdrawal  of  the  delegates  would  have 
dissolved  it,  and  any  state  at  pleasure  might  have  with- 
drawn its  own,  and  then  it  would  have  been  no  longer 
bound  by  the  acts  of  congress.  Moreover,  being  merely 
revolutionary,  it  may  be  considered  as  limited  at  farthest 
by  the  continuance  of  hostilities.  Peace  would  have 
withered  it  forever,  for  it  had  grown  only  out  of  the  ne- 
cessities of  revolution  and  war.  It  lasted  not  indeed  till 
peace.  It  was  found  but  a  rope  of  sand,  and  in  June  1778 
the  confederation  was  adopted  by  all  the  states  except  Ma- 
ryland and  Delaware.  Justly  then  has  it  been  admitted 
by  judge  Story,  that  the  union  of  the  states,  anterior  to 
that  time,  "  grew  out  of  the  exigencies  of  the  times;  and 
from  its  nature  and  objects  might  be  deemed  temporary, 
extending  only  to  the  maintenance  of  the  common  liber- 
ties and  independence  of  the  states,  and  to  terminate  with 
the  return  of  peace  with  Great  Britain  and  the  accomplish- 
ment of  the  ends  of  the  revolutionary  contest."  It  was 
under  this  ephemeral  government — this  government  of  suf- 
ferance; this  government,  the  creature  of  their  own  will, 
and  capable  of  being  dissolved  at  a  moment  by  their  ow-n 
breath,  that  the  states  are  said  to  have  been  at  the  time  of 
the  separation.  With  what  propriety  could  it  be  intimated 
by  judge  Story  that  they  were  "under  the  dominion  of  a 
superior  contruUing  national  govcrnfiient,"  at  the  time  of 
the  adoption  of  the  declaration  of  independence? 


CONSTITUTIONAL    LAW.  53 

It  is,  indeed,  most  singular  that  judge  Story  should  so 
obstinately  contend  for  the  existence  of  this  superior  con- 
trolling power,  when  he  admits  that  the  powers  of  con- 
gress were  asstimed  in  most  instances,  and  only  acquiesced 
in  by  the  tacit  consent  of  the  states.  Can  this  exercise  of 
the  powers  of  government  by  sufferance  constitute  sove- 
reignty or  supreme  controlling  power?  Were  not  the  acts  of 
congress,  indeed,  the  acts  of  the  states  themselves  through 
their  own  servants,  their  delegates?  How  could  that  be  a 
controlling  power  over  them,  which  was  exerted  by  them, 
and  not  by  others  having  authority  over  them.  In  other 
words,  how  could  the  delegates  of  the  states,  who  were 
their  servants,  have  supreme  control  over  those  who  were 
confessedly  their  masters.  Judge  Story  indeed  contends 
that  it  was  impossible  to  consider  the  states  as  sovereign, 
because  the  majority  of  the  states  could  bind  the  minority. 
But  when  was  it  ever  otherwise  in  any  confederacy  or 
union  of  states,  however  cautiously  they  may  have  guarded 
their  sovereign  powers  ?  In  every  confederacy  that  ever 
existed,  whether  formal  or  informal,  this  has  been  the  case. 
Yet  who  ever  dreamed  that  the  sovereignty  of  the  states 
was  swallowed  up  in  their  confederacy/  ?  That  sovereignty 
is  essential  to  its  existence.  It  may,  indeed,  invest  the  ex- 
ercise of  certain  powers  in  a  congress  of  ambassadors  or 
delegates,  but  the  sovereignty  itself  is  unimpaired,  since 
the  power  which  is  given  is  vicarious,  and  but  the  emana- 
tion of  its  own  free  will.  Thus  it  is  even  under  our  con- 
stitution which  has  so  many  features  of  nationality,  judge 
Story  himself  acknowledges  the  states  to  be  still  sove- 
reign,(^)  notwithstanding  the  national  character  he  attri- 
butes to  the  constitution.  And  thus  it  was,  too,  under  the 
confederation.  The  second  section  of  the  articles  ex- 
pressly declares  the  sovereignty  and  independence  of  each 
of  the  states ;  and  yet  in  all  its  action  a  minority  of  states 
was  bound  by  the  decision  of  a  majority.  It  is  then  no 
proof  of  the  loss  of  their  sovereignty  that  each  state  was 
bound  by  its  own  consent,  by  the  decision  of  the  majority 
of  all  the  states  in  congress  assembled.     It  was  necessary 

(g)  In  Martin  v.  Hunter,  1  Wheat.  304. 
5*- 


54  LECTURES    ON 

that  the  states  should  coalesce, (A)  or  act  in  concert,  and 
this  action  could  never  have  been  expected  had  unanimity 
been  made  necessary. 

It  is  also  often  remarked,  with  an  air  of  triumph,  that 
during  the  revolutionary  war,  the  states  individually  were 
not  known  nor  recognized  as  sovereign  by  foreign  nations. 
But  the  answer  is  plain  :  The  states,  collectively,  under 
congress,  as  their  connecting  point  or  head,  were  acknow- 
ledged by  foreign  powers  as  sovereign,  and  treated  with  as 
such;  and  the  states,  even  under  our  present  constitution, 
are  acknowledged  to  be  sovereign  states,  though  they  are 
not  recognized  by  foreign  nations  in  their  intercourse  as 
such. 

Judge  Story,  after  quoting  judges  Patterson  and  Jay, 
proceeds  to  quote  judge  Chase  in  page  20C,  on  this  sub- 
ject of  the  sovereignty  of  the  states,  anterior  to  the  final 
adoption  of  the  articles  of  confederation ;  but,  unfortu- 
nately, he  has  omitted  the  most  forcible  passages  in  the 
opinion  of  that  able  judge,  militating  against  the  positions 
he  himself  so  zealously  maintains.  This  may  be  seen  by 
comparing  the  opinion  already  cited,  a7ite,  pa.  4C,  with 
the  extract  in  judge  Story's  work.  "  I  consider,"  savs 
judge  Chase  "the  declaration  of  independence  as  a  decla- 
ration, not  that  the  United  Colonies  jointly,  in  a  collective 
capacity,  were  independent  states,  but  that  each  of  them 
was  an  independent  state  ;  that  is,  that  each  of  them 
had  a  right  to  govern  itself  by  its  own  authority,  and  its 
own  laws,  vnthout  any  control  from  any  other  j^ower  upon 
earth." 

It  seems  to  me  not  unworthy  of  remark,  that  the  learned 
commentator,  in  the  frequent  use  of  the  term  "  union," 
seems  never  to  have  duly  adverted  to  its  only  legitimate  use 
in  its  application  to  political  societies.  He  speaks  fami- 
liarly of  the  union  existing  anterior  to  the  declaration  of 
independence.  He  says,  "  the  union  might  be  deemed 
temporary,  extending  only  to  the  maintenance  of  common 
liberty  and  independence  of  the  states."  "  Union  !"  What 
does  it  imply?  Previous  separation  and  disunion  of  parts? 
If  so,  then  tlie  proposition  is  surrendered  as  to  the  original 

(li)  Per  Patterson,  justice.  The  idea  of  coalescing  between  po- 
litical bodies  implies  sovereignty  in  each,  and  admits  they  were 
not  coalesced  before. 


CONSTITUTIONAL    LAW.  55 

unity  or  oneness  of  the  colonies.  And  of  what  was  this 
u7iioTi?  Was  it  of  individuals  or  of  political  bodies?  If 
used  in  relation  to  the  last,  it  is  intelligible,  but  if  applied 
to  the  former,  it  is  entirely  unrecognized  by  the  political 
vocabulary.  We  speak  of  forming  or  dissolving  a  union 
in  reference  to  states,  but  no  one  ever  dreamed  of  calling 
a  national  government  a  union,  or  of  breaking  up  the  very 
foundations  of  society  itself,  when  he  speaks  of  dissolu- 
tion of  an  union. 

After  thus  presenting  some  of  my  own  views  on  this  in- 
teresting topic,  I  beg  leave  to  add  from  the  author  before 
cited,  his  much  more  satisfactory  refutation  of  the  hereti- 
cal notion  of  the  oneness  of  the  colonies  and  of  the  states 
anterior  to  the  declaration  of  independence  : 

"  In  the  execution  of  the  second  division  of  his  plan, 
very  little  was  required  of  the  author  either  as  a  historian  or 
as  a  commentator.  Accordingly,  he  has  alluded  but  slight- 
ly to  the  condition  of  the  colonies,  during  the  e.xistence  of 
the  revolutionary  government,  and  has  sketched  with  great 
rapidity,  yet  sufficiently  in  detail,  the  rise,  decline  and  fall 
of  the  confederation.  Even  here,  however,  he  has  fallen 
into  some  errors,  and  has  ventured  to  express  decisive  and 
important  opinions  without  due  warrant.  The  desire  to 
make  '  the  people  of  the  United  States'  one  consolidated 
nation,  is  so  strong  and  predominant,  that  it  breaks  forth, 
often  uncalled  for,  in  every  part  of  his  work.  He  tells  us 
that  the  first  congress  of  the  revolution  was  '  a  general  or 
national  government ;'  that  it  '  was  organized  under  the 
auspices  and  with  the  consent  of  the  people,  acting  directly 
in  their  primary,  sovereign  capacity,  and  without  the  inter- 
vention of  the  functionaries  to  whom  the  ordinary  powers 
of  government  were  delegated  in  the  colonies.'  He  ac- 
knowledges that  the  powers  of  this  congress  were  but  ill- 
defined  ;  that  many  of  them  were  exercised  by  mere  usur- 
pation, and  were  acquiesced  in  by  the  people,  only  from 
the  confidence  reposed  in  the  wisdom  and  patriotism  of  its 
members,  and  because  there  was  no  proper  opportunity, 
during  the  pressure  of  the  war,  to  raise  nice  questions  of 
the  powers  of  government.  And  yet  he  infers,  from  the 
exercise  of  powers  thus  ill-defined,  and  in  great  part, 
usurped,  that  '  from  the  moment  of  the  declaration  of  in- 
dependence, if  not  for  most  purposes,  at  an  antecedent  pe- 


66  LECTURES    ON 

riod,  the  united  colonies  must  be  considered  as  being  a 
nation  de  facto,'  &>c. 

"A  very  slight  attention  to  the  history  of  the  times  will 
place  this  subject  in  its  true  light.  The  colonies  com- 
plained of  oppressions  from  the  mother  country,  and  were 
anxious  to  devise  some  means  by  which  their  grievances 
might  be  redressed.  These  grievances  were  common  to 
all  of  them;  for  England  made  no  discrimination  between 
them,  in  the  general  course  of  her  colonial  policy.  Their 
rights,  as  British  subjects,  had  never  been  well  defined  ; 
and  some  of  the  most  important  of  those  rights,  as  assert- 
ed by  themselves,  had  been  denied  by  the  British  crown. 
As  early  as  17G5  a  majority  of  the  colonies  had  met  to- 
gether in  congress,  or  convention,  in  New  York,  for  the 
purpose  of  deliberating  on  these  grave  matters  of  common 
concern  ;  and  they  then  made  a  formal  declaration  of  what 
they  considered  their  rights,  as  colonists  and  British  sub- 
jects. This  measure,  however,  led  to  no  redress  of  their 
grievances.  On  the  contrary,  the  subsequent  measures  of 
the  British  government  gave  new  and  just  causes  of  com- 
plaint; so  that,  in  1774,  it  was  deemed  necessary  that  the 
colonies  should  again  meet  together,  in  order  to  consult 
upon  their  general  condition,  and  provide  for  the  safety  of 
their  common  rights.  Hence  the  congress  which  met  at 
Carpenter's  hall,  in  Philadelphia,  on  the  5th  of  September 
1774.  It  consisted  of  delegates  from  New  Hampshire, 
Massachusetts  Bay,  Rhode  Island  and  Providence  Planta- 
tions, Connecticut,  from  tlw  city  and  county  of  New  York, 
and  other  coitntics  in  the  province  of  Neio  York,  New  Jer- 
sey, Pennsylvania,  Newcastle,  Kent  and  Sussex  in  Dela- 
ware, Maryland,  Virginia  and  South  Carolina.  North  Ca- 
rolina was  not  represented  until  the  14th  September,  and 
Georgia  not  at  all.  It  is  also  apparent,  that  New  York 
was  not  represented  as  a  colony,  but  only  through  certain 
portions  of  her  people ;(/)  in  like  manner,  Lyman   Hall 

(i)  The  historical  fact  here  stated,  is  perfectly  authenticated,  and 
has  never  been  disputed  ;  nevertheless,  the  following  extracts  from 
the  journals  of  conf^ress,  may  not  be  out  of  place  : 

"  Wednesday,  September  14,  1774.  Henry  Wisner,  a  delegate 
from  the  cuiiiUij  of  Orange,  in  the  colony  of  New  York,  appeared 
at  congress,  and  produced  a  certificate  of  his  election  by  the  said 
county,  which  being  read  and  approved,  he  took  his  seat  in  con- 
gress as  a  deputy  from  the  colony  of  New  York." 


CONSTITUTIONAL    LAW.  57 

was  admitted  to  his  seat,  in  the  succeeding  congress,  as  a 
delegate  from  the  parish  of  St.  Johns,  in  Georgia,  although 
he  declined  to  vote  on  any  question  requiring  a  majority  of 
the  colonics  to  carry  it,  because  he  was  not  the  representa- 
tive of  a  colony.  This  congress  passed  a  variety  of  im- 
portant resolutions,  between  September  1774,  and  the  22d 
October,  in  the  same  year;  during  all  which  time  Georgia 
was  not  represented  at  all ;  for  even  the  parish  of  St. 
Johns  did  not  appoint  a  representative  till  May  1775.  In 
point  of  fact,  the  congress  was  a  deliberative  and  advisory 
body,  and  nothing  more ;  and,  for  this  reason,  it  was  not 
deemed  important,  or,  at  least,  not  indispensable,  that  all 
the  colonies  should  be  represented,  since  the  resolutions  of 
congress  had  no  obligatory  force  whatever.  It  was  appoint- 
ed for  the  sole  purpose  of  taking  into  consideration  the 
general  condition  of  the  colonies,  and  of  devising  and  re- 
commending proper  measures,  for  the  security  of  their 
rights  and  interests.  For  these  objects  no  precise  powers 
and  instructions  were  necessary,  and  beyond  them  none 
were  given.  Neither  does  it  appear  that  any  precise  time 
was  assigned  for  the  duration  of  congress.  The  duty  with 
which  it  was  charged  was  extremely  simple ;  and  it  was 
taken  for  granted  that  it  would  dissolve  itself  as  soon  as 
that  duty  should  be  performed. (A;) 

"Monday,  September  26,  1774.  John  Hening,  Esq.,  a  deputy 
from  Orajige  county,  in  the  colony  of  New  York,  appeared  this 
morning,  and  took  his  seat  as  a  deputy  from  that  colony." 

"  Saturday,  October  1,  1774.  Simon  Bocrum,  Esq.,  appeared  in 
congress  as  a  deputy  from  King's  county,  in  the  colony  of  New 
York,  and  produced  the  credentials  of  his  election,  which  being 
read  and  approved,  he  took  his  seat  as  a  delegate  from  that  co- 
lony.^ 

It  is  evident  from  these  extracts,  that  although  the  delegates 
from  certain  portions  of  the  people  of  New  York  were  admitted 
to  seats  in  congress  as  delegates  from  the  colony,  yet,  in  point  of 
fact,  they  were  not  elected  as  such,  neither  were  they  ever  recog- 
nized as  such,  by  New  York  herself.  The  truth  is,  as  will  pre- 
sently appear,  the  majority  of  her  people  were  not  ripe  for  the 
measures  pursued  by  congress,  and  would  not  have  agreed  to  ap- 
point delegates  for  the  whole  colony. 

{k)  A  reference  to  the  credentials  of  the  congress  of  1774  will 
shew,  beyond  all  doubt,  the  true  character  of  that  assembly.  The 
following  are  extracts  from  them  : 

New  Hampshire.  "To  devise,  consult  and  adopt  such  measures 
as  may  have  the  most  likely  tendency  to  extricate  the  colonies  from 


58  LECTURES    ON 

"It  is  perfectly  apparent  that  the  mere  appointment  of 
this  congress  did  not  make  the  people  of  all  the  colonies 
'  one  people,'  nor  '  a  nation  de  facto.'     All  the  colonies 

their  present  difficulties;  to  secure  and  perpetuate  their  rights, 
liberties  and  privileges,  and  to  restore  that  peace,  harmony  and 
mutual  confidence,  which  once  happily  subsisted  between  the  pa- 
rent country  and  her  colonies." 

Massachusetts.  "To  consult  on  the  present  state  of  the  colo- 
nies, and  the  miseries  to  which  they  are,  and  must  be  reduced,  by 
the  operation  of  certain  acts  of  parliament  respecting  America; 
and  to  deliberate  and  determine  upon  wise  and  proper  measures 
to  he  bij  them  recommended  to  all  the  colonies,  for  the  recovery  and 
establishment  of  their  just  rights  and  liberties,  civil  and  religious, 
and  the  restoration  of  union  and  harmony  between  Great  Britain 
and   the  colonies,  most  ardently  desired  by  all  good  men." 

Rhode  Island.  "  To  consult  on  proper  measures  to  obtain  a  re- 
peal of  the  several  acts  of  the  British  parliament  for  levying  taxes 
on  his  majesty's  subjects  in  America  without  their  consent,  and 
upon  proper  measures  to  establish  the  rights  and  liberties  of  the 
colonies  upon  a  just  and  solid  foundation,  agreeably  to  instructions 
given  by  the  general  assembly.'' 

Connecticut.  "  To  consult  and  advise  on  proper  measures  for 
advancing  the  best  good  of  the  colonies,  and  such  conferences  to 
report,  from  time  to  time,  to  the  colonial  house  of  representatives." 

New  York.  Only  a  few  of  her  counties  were  represented,  some 
by  deputies  authorized  to  "  represent,"  and  some  by  deputies  au- 
thorized to  "attend  congress." 

New  Jersey.  "  To  represent  the  colony  in  the  general  congress." 

Pennsylvania.  "  To  form  and  adopt  a  plan  for  the  purposes  of 
obtaining  redress  of  American  grievances,  ascertaining  American 
rights  upon  the  most  solid  and  constitutional  principles,  and  for 
establishing  that  union  and  harmony  between  Great  Britain  and 
the  colonies  which  is  indispensably  necessary  to  the  welfare  and 
happiness  of  both." 

Delaware.  "  To  consult  and  advise  with  the  deputies  from  the 
other  colonies,  to  determine  upon  all  sucli  prudent  and  lawful  mea- 
sures as  may  be  judged  most  expedient  for  the  colonies  immediately 
and  unitedly  to  adopt,  in  order  to  obtain  relief  for  an  oppressed 
people,*  and  the  redress  of  our  general  grievances." 

Maryland.  "  To  attend  a  general  congress,  to  effect  one  gene- 
ral plan  of  conduct,  operating  on  the  commercial  connexion  of  the 
colonies  with  the  mother  country,  for  the  relief  of  Boston  and  the 
preservation  of  American  liberty." 

Virginia.  "  To  consider  of  the  most  proper  and  effectual  man- 
ner of  so  operating  on  the  commercial  connexion  of  the  colonies 
with  the  mother  country,  as  to  procure  redress  for  the  much  in- 
jured province  of  Massachusetts  Bay,  to  secure  British    America 

*  Massacliu setts,  the  particular  wrongs  of  which  are  just  before  recited  at 
large. 


CONSTITUTIONAL    LAW.  59 

did  not  unite  in  the  appointment,  neither  as  colonies  nor 
by  any  portion  of  their  people  acting  in  their  primary  as- 
semblies, as  has  already  been  shewn.     The  colonies  were 

from  the  ravage  and  ruin  of  arbitrary  taxes,  and  speedily  to  pro- 
cure the  return  of  that  liarmony  and  union,  so  beneficial  to  the 
whole  empire,  and  so  ardently  desired  by  all  British  America." 

North  Carolina.  "  To  take  such  measures  as  they  may  deem 
prudent  to  effect  the  purpose  of  describing  with  certainty  the  rights 
of  Americans,  repairing  the  breach  made  in  those  rights,  and  for 
guarding  them  for  the  future  from  any  such  violations  done  under 
the  sanction  of  public  authority."  For  these  purposes  the  dele- 
gates are  "  invested  with  such  powers  as  may  make  any  acts  done 
by  them  obligatory  hi  honour,  on  every  inhabitant  hereof,  who  is 
not  an  alien  to  his  country's  good,  and  an  apostate  to  the  liberties 
of  America." 

South  Carolina.  "To  consider  the  acts  lately  passed,  and  bills 
depending  in  parliament  with  regard  to  the  port  of  Boston  and  co- 
lony of  Massachusetts  Bay  ;  which  acts  and  bills,  in  the  precedent 
and  consequences,  affect  the  whole  continent  of  America.  Also 
the  grievances  under  which  America  labours,  by  reason  of  the  se- 
veral acts  of  parliament  that  impose  taxes  or  duties  for  raising  a 
revenue,  and  lay  unnecessary  restraints  and  burdens  on  trade  ;  and 
of  the  statutes,  parliamentary  acts  and  royal  instructions,  which 
make  an  invidious  distinction  between  his  majesty's  subjects  in 
Great  Britain  and  America,  with  full  power  and  authority  to  con- 
cert, agree  to  and  prosecute  such  legal  measures,  as  in  the  opinion 
of  the  said  deputies,  so  to  be  assembled,  shall  be  most  likely  to  ob- 
tain a  repeal  of  the  said  acts,  and  a  redress  of  those  grievances." 

[The  above  extracts  are  made  from  the  credentials  of  the  depu- 
ties of  the  several  colonies,  as  spread  upon  the  journal  of  congress, 
according  to  a  copy  of  that  journal  bound  (as  appears  by  a  gilt 
label  on  the  back  tiiereof )  for  the  use  of  the  president  of  congress  ; 
now  in  possession  of  B.  Tucker  esq.] 

It  is  perfectly  clear  from  these  extracts,  1.  That  the  colonies  did 
not  consider  themselves  as  "one  people,"  and  that  they  were 
therefore  bound  to  consider  the  quarrel  of  Boston  as  their  own ; 
but  that  they  made  common  cause  with  Massachusetts,  only  be- 
cause the  ■principles  asserted  in  regard  to  her,  equally  affected  the 
other  colonics.  2.  That  each  colony  appointed  its  own  delegates, 
giving  them  precisely  such  power  and  authority  as  suited  its  owa 
views.  3.  That  no  colony  gave  any  power  or  authority  except  for 
advisement  only.  4.  That  so  far  from  designing  to  establish  "a 
general  or  national  government,"  and  to  form  themselves  into  "a 
nation  de  facto,"  their  great  purpose  was  to  bring  about  a  reconci- 
liation and  harmony  with  the  mother  country.  This  is  still  farther 
apparent  from  the  tone  of  the  public  addresses  of  congress.  5.  That 
this  congress  was  not  "organized  under  the  auspices  and  with  the 
consent  of  the  people,  acting  directly  in  their  primary,  sovereign 
capacity,  and  without  the  intervention  of  the  functionaries  to 
whom  the  ordinary  powers  of  government  were  delegated  in  the 


60  LECTURES    ON 

not  independent,  and  had  not  even  resolved  to  declare 
themselves  so  at  any  future  time.  On  the  contrary,  they 
were  extremely  desirous  to  preserve  and  continue  their 
connexion  with  the  parent  country,  and  congress  was 
charged  with  the  duty  of  devising  such  measures  as  would 
enable  them  to  do  so,  without  involving  a  surrender  of 
their  rights  as  British  subjects.  It  is  equally  clear,  that 
the  powers  with  which  congress  was  clothed,  did  not  flow 
from,  nor  constitute  '  one  people,'  or  '  nation  de  fncto,' 
and  that  that  body  was  not  '  a  general  or  national  govern- 
ment,' nor  a  government  of  any  kind  whatever.  The  ex- 
istence of  such  government  was  absolutely  inconsistent 
with  the  allegiance  which  the  colonies  still  acknowledged 
to  the  British  crown.  Our  author  himself  informs  us,  in 
a  passage  already  quoted,  that  they  had  no  power  to  form 
such  government,  nor  to  enter  into  '  any  league  or  treaty 
among  themselves.'  Indeed,  congress  did  not  claim  any 
legislative  power  whatever,  nor  could  it  have  done  so  con- 
sistently with  the  political  relations  which  the  colonies  still 
acknowledged  and  desired  to  preserve.  Its  acts  were  in 
the  form  of  resolutions ,  and  not  in  the  form  of  lotos ;  it 
rerommended  to  its  constituents  whatever  it  believed  to  be 
for  their  advantage,  but  it  coiiimandcd  nothing.  Each  co- 
lony, and  the  people  thereof,  were  at  perfect  liberty  to  act 
upon  such  recommendation  or  not,  as  they  might  think 
proper. (/) 

colonies,"  but,  on  the  contrary,  that  it  was  organized  by  the  colo- 
nies as  such,  and  generally  through  their  ordinary  legislatures; 
and  always  with  careful  regard  to  their  separate  and  independent 
rights  and  powers. 

If  the  congress  of  1774  was  "  a  general  or  national  govern- 
vernmcnt,"  neither  New  York  nor  Georgia  was  a  party  \i;  for 
neither  of  them  was  represented  in  that  congress.  It  is  also  wor- 
thy of  remark  that  the  congress  of  1774  had  no  agents  of  its  own 
in  foreign  countries,  but  emploj'ed  those  of  the  several  colonies. 
See  the  resolution  for  delivering  the  address  to  the  king,  passed 
October  ^.5,  1774,  and  the  letter  to  the  agents,  approved  on  the  fol- 
lowing day. 

(/)  The  journals  of  congress  afford  the  most  abundant  and  con- 
clusive proofs  of  this.  In  order  to  shew  the  general  character  of 
their  proceedings,  it  is  enough  for  me  to  refer  to  the  following: 

On  the  11th  October  1774,  it  was  "Resolved  unanimously, 
That  a  memorial  be  prepared  to  the  people  of  British  America, 
stating  to  them  the  necessity  of  a  firm,  united  and  invariable  ob- 


CONSTITUTIONAL    LAW.  61 

"On  the  22d  October  1774,  this  congress  dissolved  it- 
self, having  recommended  to  the  several  colonies  to  ap- 
point delegates  to  another  congress,  to  be  held  in  Phila- 
delphia in  the  following  May.  Accordingly  delegates 
were  chosen,  as  they  had  been  chosen  to  the  preceding 
congress,  each  colony  and  the  people  thereof  acting  for 
themselves,  and  by  themselves ;  and  the  delegates  thus 
chosen  were  clothed  with  substantially  the  same  powers, 
for  precisely  the  same  objects,  as  in  the  former  congress. 
Indeed,  it  could  not  have  been  otherwise;  for  the  relations 
of  the  colonies  were  still  unchanged,  and  any  measure  es- 
tablishing '  a  general  or  national  government,'  or  uniting 
the  colonies  so  as  to  constitute  them  '  a  nation  cJe  facto,' 
would  have  been  an  act  of  open  rebellion,  and  would  have 

servation  of  the  measures  recommended  by  the  congress,  as  they 
tender  the  invaluable  rights  and  liberties  derived  to  tliem  from  the 
laws  and  constitution  of  their  country."  The  memorial  was  ac- 
cordingly prepared,  in  conformity  with  tlie  resolution. 

Congress  having  previously  had  under  consideration  the  plan  of 
an  association  for  establishing  non-importation  ttc.  finally  adopted 
it,  October  20,  1774.  After  reciting  their  grievances,  they  say, 
"And,  therefore,  we  do,  for  ourselves  and  the  inhabitants  of  the 
several  colonies  whom  we  represent,  firmly  agree  and  associate, 
under  the  sacred  ties  of  virtue^  honour  and  love  of  our  cou7itrij,  as 
follows."  They  then  proceed  to  recommend  a  certain  course  of 
proceeding,  such  as  non-importation  and  non-consumption  of  cer- 
tain British  productions.  They  recommend  the  appointment  of  a 
committee  in  every  county,  city  and  town,  to  watch  their  fellow- 
citizens,  in  order  to  ascertain  whether  or  not  "  any  person  within 
the  limits  of  their  appointment  has  violated  this  association;"  and 
if  they  should  find  any  such,  it  is  their  duty  to  report  them,  "  to 
the  end,  that  all  such  foes  to  the  rights  of  British  America  may  be 
publicly  known,  and  universally  contemned  as  the  enemies  of  Jimc- 
rican  liberty;  and,  thenceforth,  we  respectively  icill  break  off  all 
dealings  with  him  or  her."  They  also  resolve  that  they  will  "have 
no  trade,  commerce,  dealings  or  intercourse  whatsoever,  with  any 
colony  or  province  in  North  America,  which  shall  not  accede  to, 
or  which  shall  hereafter  violate  this  association,  but  will  hold  them 
as  unworthy  of  the  rights  of  freemen,  and  as  inimical  to  the  liber- 
ties of  their  country." 

This  looks  very  little  like  the  legislation  of  the  "  general  or  na- 
tional government"  of  "a  nation  de  facto.''  The  most  important 
measures  of  general  concern  are  rested  upon  no  stronger  founda- 
tion than  "the  sacred  ties  of  virtue,  honour,  and  the  love  of  our 
country,"  and  have  no  higher  sanction  than  public  contempt  and 
e.\clusion  from  the  ordinary  intercourse  of  society  ! 
6 


62  LECTURES    ON 

severed  at  once  all  the  ties  which  bound  them  to  the  mo- 
ther country,  and  which  they  were  still  anxious  to  pre- 
serve. New  York  was  represented  in  this  congress  pre- 
cisely as  she  had  been  in  the  former  one,  that  is,  by  dele- 
gates chosen  by  a  part  of  her  people ;  for  the  royal  party 
was  so  strong  in  that  colony,  that  it  would  have  been  im- 
possible to  obtain  from  the  legislature  an  expression  of  ap- 
probation of  any  measure  of  resistance  to  British  autho- 
rity. The  accession  of  Georgia  to  the  general  association 
was  not  made  known  till  the  20th  of  July,  and  her  dele- 
gates did  not  take  their  seats  till  the  13th  of  September. 
In  the  mean  time  congress  had  proceeded  in  the  discharge 
of  its  duties,  and  some  of  its  most  important  acts,  and 
among  the  rest,  the  appointment  of  a  commander-in-chief 
of  their  armies,  were  performed  while  those  two  colonies 
were  unrepresented.  Its  acts,  like  those  of  the  former 
congress,  were  in  the  form  of  resolution  and  recommen- 
dation ;  for,  as  it  still  held  out  the  hope  of  reconciliation 
with  the  parent  country,  it  did  not  venture  to  assume  the 
function  of  authoritative  legislation.  It  continued  to  hold 
this  attitude  and  to  act  in  this  mode  till  the  4th  of  July 
1776,  when  it  declared  that  the  colonies  there  represented 
(including  New  York,  which  had  acceded  after  the  battle 
of  Lexington)  were,  and  of  right  ought  to  be,  free  and  in- 
dependent states.(/«) 

(m)  That  the  powers  granted  to  the  delegates  to  the  second  con- 
crress  were  substantially  the  same  with  those  granted  to  the  dele- 
gates to  the  first,  will  appear  from  the  following  extracts  from  their 
credentials  : 

New  Hampshire.  "  To  consent  and  agree  to  all  measures  which 
said  congress  shall  deem  necessary  to  obtain  redress  of  American 
grievances."     Delegates  appointed  by  a  convention. 

Massachusetts.  "  To  concert,  agree  upon,  direct  and  order"  (in 
concert  with  the  delegates  of  the  other  colonies)  "such  further 
measures  as  to  them  shall  appear  to  be  best  calculated  for  the  re- 
covery and  establishment  of  American  rights  and  liberties,  and  for 
restoring  harmony  between  Great  Britain  and  the  colonies."  De- 
legates appointed  by  provincial  congress. 

Connecticut.  "To  join,  consult  and  advise  with  the  other  co- 
lonies in  British  America,  on  proper  measures  for  advancing  the 
best  good  of  the  colonics."  Delegates  appointed  by  the  colonial 
house  of  representatives. 

The  colony  of  New  York  was  not  represented  in  this  congress, 
but  delegates  were  appointed  by  a  convention  of  deputies  from  the 


CONSTITUTIONAL    LAW.  63 

"  It  is  to  be  remarked,  that  no  new  powers  were  con- 
ferred on  congress  after  the  declaration  of  independence. 
Strictly  speaking,  they  had  no  authority  to  make  that  de- 
city  and  county  of  New  York,  the  city  and  county  of  Albany,  and 
the  counties  of  Dutchess,  Ulster,  Orange,  West  Chester,  King's, 
and  Suffolk.  They  gave  their  delegates  power  to  "concert  and 
determine  upon  such  measures  as  shall  be  judged  most  effectual 
for  the  preservation  and  re-establishment  of  American  rights  and 
privileges,  and  for  the  restoration  of  harmony  between  Great  Bri- 
tain and  the  colonies."  Queen's  county  approved  of  the  proceed- 
ing. 

Pennsylvania.  Simply  to  "  attend  the  general  congress."  De- 
legates appointed  by  provincial  assembly. 

New  Jersey.  "  To  attend  the  continental  congress,  and  to  re- 
port their  proceedings  to  the  next  session  of  general  assembly." 
Delegates  appointed  by  the  colonial  assembly. 

Delaware.  "To  concert  and  agree  upon  such  farther  measures 
as  shall  appear  to  them  best  calculated  for  the  accommodation  of 
the  unhappy  differences  between  Great  Britain  and  the  colonies  on 
a  constitutional  foundation,  Avhich  the  house  most  ardently  wish 
for,  and  that  they  report  their  proceedings  to  the  next  session  of 
general  assembly."     Delegates  appointed  by  the  assembly. 

Maryland.  "  To  consent  and  agree  to  all  measures  which  said 
congress  shall  deem  necessary  and  effectual  to  obtain  a  redress  of 
American  grievances;  and  this  province  bind  themselves  to  exe- 
cute, to  the  utmost  of  their  power,  all  resolutions  which  the  said 
congress  may  adopt."  Delegates  appointed  by  convention,  and 
subsequently  approved  by  the  general  assembly. 

Virginia.  "To  represent  this  colony  in  general  congress,  to  be 
held  &-C."     Delegates  appointed  by  convention. 

North  Carolina.  "Such  powers  as  may  make  any  acts  done  by 
them,  or  any  of  them,  or  consent  given  in  belialf  of  this  province, 
obligatory  in  honour  upon  every  inhabitant  thereof."  Delegates 
appointed  by  convention,  and  approved  in  creneral  assembly. 

South  Carolina.  "  To  concert,  agree  to,  and  effectually  prose- 
cute such  measures  as,  in  the  opinion  of  the  said  deputies  and  the 
deputies  to  be  assembled,  shall  be  most  likely  to  obtain  a  redress 
of  American  grievances."  Delegates  appointed  by  provincial  con- 
gress. 

In  the  copy  of  the  journals  of  congress  now  before  me,  I  do  not 
find  the  credentials  of  the  delegates  from  Rhode  Island.  They 
did  not  attend  at  the  first  meeting  of  congress,  although  they  did 
at  a  subsequent  period.  Georgia  was  not  represented  in  this  con- 
gress until  September  17T5.  On  the  13th  May  177.5,  Lyman  Hall 
appeared  as  a  delegate  from  the  parish  of  St.  John's,  and  he  was 
admitted  to  his  seat,  "subject  to  such  regulations,  as  the  congress 
shall  determine,  relative  to  his  voting."  He  was  never  regarded  as 
the  representative  of  Georgia,  nor  was  that  colony  then  considered 
as  a  party  to  the  proceedings  of  congress.     This  is  evident  from 


64  LECTURES    ON 

claration.  They  were  not  appointed  for  any  such  purpose, 
but  precisely  the  reverse ;  and  although  some  of  them 
were  expressly  authorized  to  agree  to  it,  yet  others  were 
not.  Indeed,  we  are  informed  by  Mr.  Jefferson,  that  the 
declaration  was  opposed  by  some  of  the  firmest  patriots  of 
the  body,  and  among  the  rest,  by  R.  R.  Livingston,  Dick- 
enson, Wilson  and  E.  Rutledge,  on  the  ground  that  it  was 
premature;  that  the  people  of  New  York,  New  Jersey, 
Maryland  and  Delaware,  were  not  yet  ripe  for  it,  but 
would  soon  unite  with  the  rest,  if  not  indiscreetly  urged. 
In  venturing  upon  so  bold  a  step,  congress  acted  pre- 
cisely as  they  did  in  all  other  cases,  in  the  name  of  the 
states  whose  representatives  they  were,  and  with  a  full  re- 
liance that  tliose  states  would  confirm  whatever  they  might 
do  for  the  general  good.  They  were,  strictly,  agents  or 
ministers  of  independent  states,  acting  each  under  the  au- 
thority and  instructions  of  his  own  state,  and  having  no 
power  whatever,  except  what  those  instructions  conferred. 
The  states  themselves  were  not  bound  by  the  resolves  of 
congress,  except  so  far  as  they  respectively  authorized 
their  own  delegates  to  bind  them.  There  was  no  original 
grant  of  powers  to  that  body,  except  for  deliberation  and 
advisement;  there  was  no  constitution,  no  law,  no  agree- 
ment, to  which  they  could  refer,  in  order  to  ascertain  the 
extent  of  their  powers.  The  members  did  not  all  act  un- 
der the  same  instructions,  nor  with  the  same  extent  of  au- 

tlie  fact  that,  in  the  address  to  the  inhabitants  of  Great  Britain, 
they  use  the  style,  "The  twelve  United  Colonies,  by  their  dele- 
gates in  congress,  to  the  inhabitants  of  Great  Britain,"  adopted  on 
the  8th  July  1775.  On  the  120th  of  that  month,  congress  were  no- 
tified that  a  convention  of  Georgia  had  appointed  delegates  to  at- 
tend them,  but  none  of  them  took  their  scats  till  tlie  13th  of  Sep- 
tember following.  They  were  authorized  "to  do,  transact,  join, 
and  concur  with  the  several  delegates  from  the  other  colonies  and 
provinces  upon  this  continent,  on  all  such  matters  and  things  as 
shall  appear  eligible  and  fit,  at  this  alarming  lime,  for  the  preser- 
vation and  defence  of  our  rights  and  liberties,  and  for  the  restora- 
tion of  harmony,  upon  constitutional  principles,  between  Great 
Britain  and  America." 

Some  of  the  colonies  appointed  their  delegates  only  for  limited 
times,  at  the  e.xpiration  of  which,  they  were  replaced  by  others, 
but  without  any  material  change  in  their  powers.  The  delegates 
were,  in  all  things,  subject  to  the  orders  of  their  respective  colo- 
nies. 


CONSTITUTIONAL    LAW.  65 

thority.  The  different  states  gave  different  instructions, 
each  according  to  its  own  views  of  right  and  policy,  and 
without  reference  to  any  general  scheme  to  which  they 
were  all  bound  to  conform.  Congress  had  in  fact  no  power 
of  government  at  all,  nor  had  it  that  character  of  perma- 
nency which  is  implied  in  the  idea  of  government.  It 
could  not  pass  an  obligatory  law,  nor  devise  an  obliga- 
tory sanction,  by  virtue  of  any  inherent  power  in  itself. 
It  was,  as  already  remarked,  precisely  the  same  body  after 
the  declaration  of  independence  as  before.  As  it  was  not 
then  a  government,  and  could  not  establish  any  new  and 
valid  relations  between  the  colonies,  so  long  as  they  ac- 
knowledged themselves  dependencies  of  the  British  crown, 
they  certainly  could  not  do  so  after  the  declaration  of  in- 
dependence, without  some  new  grant  of  power.  The  de- 
pendent colonies  had  then  become  independent  states ; 
their  political  condition  and  relations  were  necessarily 
changed  by  that  circumstance ;  the  deliberative  and  advi- 
sory body,  through  whom  they  had  consulted  together  as 
colonies,  was  functus  officio ;  the  authority  which  ap- 
pointed them  had  ceased  to  exist,  or  was  superseded  by  a 
higher  authority.  Every  thing  which  they  did,  after  this 
period,  and  before  the  articles  of  confederation,  was  with- 
out any  other  right  or  authority  than  what  was  derived 
from  the  mere  consent  and  acquiescence  of  the  several 
states.  In  the  ordinary  business  of  that  government  de 
facto,  which  the  occasion  had  called  into  existence,  they 
did  whatever  the  public  interest  seemed  to  require,  upon 
the  secure  reliance  that  their  acts  would  be  approved  and 
confirmed.  In  other  cases,  however,  they  called  for  spe- 
cific grants  of  power  ;  and  in  such  cases,  each  representa- 
tive applied  to  his  own  state  alone,  and  not  to  any  other 
state  or  people.  Indeed,  as  they  were  called  into  existence 
by  the  colonies  in  1775,  and  as  they  continued  in  existence 
without  any  new  election  or  new  grant  of  power,  it  is  dif- 
ficult to  perceive  how  they  could  form  '  a  general  or  na- 
tional government,  organized  by  the  peopled  They  were 
elected  by  subjects  of  the  king  of  England ;  subjects  who 
had  no  right,  as  they  themselves  admitted,  to  establish  any 
government  whatever ;  and  when  those  subjects  became 
citizens  of  independent  states,  they  gave  no  instructions 
to  establish  any  such  government.  The  government  ezer- 
G* 


66  LECTURES    ON 

cised  was,  as  already  remarked,  merely  a  government  de 
facto,  and  no  farther  dc  jure  than  the  subsequent  approval 
of  its  acts  by  the  several  states  made  it  so. 

"  This  brief  review  will  enable  us  to  determine  how  far 
the  author  is  supported  in  the  inferences  he  has  drawn,  in 
the  passages  last  quoted.  We  have  reason  to  regret  that 
in  these,  as  in  many  others,  he  has  not  been  sufficiently 
specific,  either  in  stating  his  proposition  or  in  citing  his 
proof  To  what  people  does  he  allude,  when  he  tells  us 
that  the  '  first  general  or  national  government'  was  orga- 
nized 'by  the  people?'  The  first  and  every  recommenda- 
tion to  send  deputies  to  a  general  congress  was  addressed 
to  the  colonies  as  such ;  in  the  choice  of  those  deputies 
each  colony  acted  for  itself,  without  mingling  in  any  way 
with  the  people  or  government  of  any  other  colony ;  and 
when  the  deputies  met  in  congress,  they  voted  on  all  ques- 
tions of  public  and  general  concern  by  colonies,  each  co- 
lony having  one  vote,  whatever  was  its  population  or  num- 
ber of  deputies.  If,  then,  this  government  was  organized 
bv  '  the  people'  at  all,  it  was  clearly  the  people  of  the  se- 
veral colonies,  and  not  the  joint  people  of  all  the  colonies. 
And  where  is  the  author's  warrant  for  the  assertion,  that 
they  acted  '  directly  in  their  primary  sovereign  capacity, 
and  without  the  intervention  of  the  functionaries,  to  whom 
the  ordinary  powers  of  government  were  delegated  in  the 
colonies.'  He  is  in  most  respects  a  close  follower  of  Mar- 
shall, and  he  could  scarcely  have  failed  to  see  the  follow- 
ing passage,  which  is  found  in  a  note  in  the  !C8th  page  of 
the  second  volume  of  the  Life  of  Washington.  Speaking 
of  the  congress  of  1774,  Marshall  says  :  '  The  members  of 
this  congress  were  generally  elected  by  the  authority  of 
the  colonial  legislatures,  but  in  some  instances  a  different 
system  had  been  pursued.  In  New  Jersey  and  Maryland 
the  elections  were  made  by  committees  chosen  in  the  seve- 
ral counties  for  that  particular  purpose  ;  and  in  New  York, 
where  the  royal  party  was  very  strong,  and  where  it  is  pro- 
bable that  no  legislative  act,  authorizing  an  election  of 
members  to  represent  that  colony  in  congress,  could  have 
been  obtained,  the  people  themselves  assembled  in  those 
places,  where  the  spirit  of  opposition  to  the  claims  of  par- 
liament prevailed,  and  elected  deputies,  who  were  readily 
received  into  congress.'    Here  the  general  rule  is  stated  to 


CONSTITUTIONAL    LAW.  67 

be,  that  the  deputies  were  elected  by  the  '  colonial  legisla- 
tures,' and  the  instances  in  which  the  people  acted  '  di- 
rectly in  their  primary  sovereign  capacity,  without  the  in- 
tervention of  the  ordinary  functionaries  of  government,' 
are  given  as  exceptions.  And  even  in  those  cases,  in  which 
delegates  were  appointed  by  conventions  of  the  people,  it 
was  deemed  necessary  in  many  instances,  as  we  have  alrea- 
dy seen,  that  the  appointment  should  be  approved  and  con- 
firmed by  the  ordinary  legislature.  As  to  New  York,  nei- 
ther her  people  nor  her  government  had  so  far  lost  their 
attachment  to  the  mother  country  as  to  concur  in  any 
measure  of  opposition  until  after  the  battle  of  Lexington, 
in  April  1775;  and  the  only  representatives  which  New 
York  had  in  the  congress  of  1774  were  those  of  a  compa- 
ratively small  portion  of  her  people.  It  is  well  known — 
and,  indeed,  the  author  himself  so  informs  us — that  the 
members  of  the  congress  of  1775  were  elected  substanti- 
ally as  were  those  of  the  preceding  congress  ;  so  that  there 
Mere  very  few  of  the  colonies,  in  which  the  people  per- 
formed that  act  in  their  '  primary  sovereign  capacity,' 
without  the  intervention  of  their  constituted  authorities. 
It  is  of  little  consequence,  however,  to  the  present  enqui- 
ry, whether  the  deputies  were  chosen  by  the  colonial  legis- 
latures, as  was  done  in  most  of  the  colonies,  or  by  conven- 
tions, as  was  done  in  Georgia  and  some  others,  or  by  com- 
mittees appointed  for  the  purpose,  as  was  done  in  one  or 
two  instances,  or  by  the  people  in  primary  assemblies,  as 
was  done  in  part  of  New  York.  All  these  modes  were  re- 
sorted to,  according  as  the  one  or  the  other  appeared  most 
convenient  or  proper  in  each  particular  case.  But,  which- 
ever mode  was  adopted,  the  members  were  chosen  by  each 
colony  in  and  for  itself,  and  were  the  representatives  of 
that  colony  alone,  and  not  of  any  other  colony,  or  any 
nation  de  facto  or  dc  jure.  The  assertion,  therefore,  that 
'  the  congress  thus  assembled  exercised  de  facto  and  de 
jure  a  sovereign  authority,  not  as  the  delegated  agents  of 
the  governments  de  facto  of  the  colonies,  but  in  virtue  of 
original  powers  derived  from  the  people,'  is,  to  say  the  least 
of  it,  veri/  bold,  in  one  who  had  undoubtedly  explored  all 
the  sources  of  information  upon  the  subject.  Until  the 
adoption  of  the  articles  of  confederation  congress  had  no 
'  original  powers,'  except  only  for  deliberation  and  advise- 


68  LECTURES    ON 

ment,  and  claimed  no  '  sovereign  authority'  whatever.  It 
was  an  occasional,  and  not  a  permanent  body,  or  one  renew- 
able from  time  to  time.  Although  they  did,  in  many  in- 
stances, '  exercise  de  facto'  a  power  of  legislation  to  a  cer- 
tain extent,  yet  they  never  held  that  power  '  dc  jure,'  by 
any  grant  from  the  colonies  or  the  people ;  and  their  acts 
became  valid  only  by  subsequent  contirmation  of  them, 
and  not  because  they  had  any  delegated  authority  to  per- 
form them.  The  whole  history  of  the  period  proves  this, 
and  not  a  single  instance  can  be  cited  to  the  contrary.  The 
course  of  the  revolutionary  government  throughout  attests 
the  fact,  that,  however  the  people  may  have  occasionally 
acted,  in  pressing  emergencies,  without  the  intervention  of 
the  authorities  of  their  respective  colonial  governments, 
they  never  lost  sight  of  the  fact  that  they  were  citizens  of 
separate  colonies,  and  never,  even  impliedly,  surrendered 
that  character,  or  acknowledged  a  different  allegiance.  In 
cdl  the  acts  of  congress,  reference  was  had  to  the  colonies, 
and  never  to  the  people.  That  body  had  no  power  to  act 
directly  upon  the  people,  and  could  not  execute  its  own 
resolves  as  to  most  purposes,  except  by  the  aid  and  inter- 
vention of  the  colonial  authorities.  Its  measures  were 
adopted  by  the  votes  of  the  colonies  as  such,  and  not  by  the 
rule  of  mere  numerical  majority,  which  prevails  in  every 
legislative  assembly  of  an  entire  nation.  This  fact  alone 
is  decisive  to  prove,  that  the  members  were  not  the  repre- 
sentatives of  the  people  of  all  the  colonies,  for  the  judg- 
ment of  each  colony  was  pronounced  by  its  own  members 
only,  and  no  others  had  any  right  to  mingle  in  their  deli- 
berations. What,  then,  was  this  'sovereign  authority?' 
What  was  the  nature,  what  the  extent,  of  its  '  original  pow- 
ers?' From  what  'people'  were  those  powers  derived?  I 
look  in  vain  for  answers  to  these  questions  to  any  histori- 
cal record  which  has  ye(  met  my  view,  and  have  only  to 
rewret  that  the  author  has  not  directed  me  to  better  guides. 
"  The  author's  conclusion  is  not  better  sustained  by  the 
nature  and  extent  of  the  powers  exercised  by  the  revolu- 
tionary government.  It  has  already  been  stated,  that  no 
original  powers  of  legislation  were  granted  to  the  con- 
gresses of  1774  and  1775;  and  it  is  only  from  their  acts 
that  we  can  determine  what  powers  they  actually  exer- 
cised.    The  circumstances  under  which  they  were  called 


CONSTITUTIONAL    LAW.  69 

into  existence  precluded  the  possibility  of  any  precise 
limitations  of  their  powers,  even  if  it  had  been  designed 
to  clothe  them  with  the  functions  of  government.  The  co- 
lonies were  suffering  under  common  oppressions,  and  were 
threatened  with  common  dangers,  from  the  mother  coun- 
try. The  great  object  which  they  had  in  view  was  to  pro- 
duce that  concert  of  action  among  themselves  which  would 
best  enable  them  to  resist  their  common  enemy,  and  best 
secure  the  safety  and  liberties  of  all.  Great  confidence 
must  necessarily  be  reposed  in  public  rulers  under  circum- 
stances of  this  sort.  We  may  well  suppose,  therefore,  that 
the  revolutionary  government  exercised  every  power  which 
appeared  to  be  necessary  for  the  successful  prosecution  of 
the  great  contest  in  which  they  were  engaged ;  and  we 
may,  with  equal  propriety,  suppose  that  neither  the  people 
nor  the  colonial  governments  felt  any  disposition  to  scruti- 
nize very  narrowly  any  measure  which  promised  protection 
and  safety  to  themselves.  They  knew  that  the  government 
was  temporary  only ;  that  it  was  permitted  only  for  a  par- 
ticular and  temporary  object,  and  that  they  could  at  any 
time  recall  any  and  every  power  which  it  had  assumed.  It 
would  be  a  violent  and  forced  inference,  from  the  powers 
of  such  an  agency,  (for  it  was  not  a  government,  although 
I  have  sometimes,  for  convenience,  called  it  so,)  however 
great  they  might  be,  to  say  that  the  people,  or  states,  which 
established  it,  meant  thereby  to  merge  their  distmctive  cha- 
racter, to  surrender  all  the  rights  and  privileges  which  be- 
longed to  them  as  separate  communities,  and  to  consolidate 
themselves  into  one  nation. 

"In  point  of  fact,  however,  there  was  nothing  in  the 
powers  exercised  by  the  revolutionary  government,  so  far 
as  they  can  be  known  from  their  acts,  inconsistent  with  the 
perfect  sovereignty  and  independence  of  the  states.  These 
were  alway^^.  admitted  in  terms,  and  were  never  denied  in 
practice.  So  far  as  external  relations  were  concerned,  con- 
gress seems  to  have  exercised  every  power  of  a  supreme  go- 
vernment. They  assumed  the  right  to  '  declare  war  and 
to  make  peace ;  to  authorize  captures;  to  institute  appel- 
late prize  courts ;  to  direct  and  control  all  national,  mili- 
tary and  naval  operations;  to  form  alliances  and  make 
treaties ;  to  contract  debts  and  issue  bills  of  credit  on 
national  account.'     These  powers  were  not  '  exclusive,' 


70  LEC-^-URES    ON 

however,  as  our  author  supposes.  On  the  contrary,  troops 
were  raised,  vessels  of  war  were  commissioned,  and  va- 
rious military  operations  were  conducted  by  the  colonies, 
on  their  own  separate  means  and  authority.  Ticonderoga 
was  taken  by  the  troops  of  Connecticut  before  the  decla- 
ration of  independence ;  Massachusetts  and  Connecticut 
fitted  out  armed  vessels  to  cruise  against  those  of  England, 
in  October  1775;  South  Carolina  soon  followed  their  ex- 
ample. In  1776,  New  Hampshire  authorized  her  execu- 
tive to  issue  letters  of  marque  and  reprisal. 

"  These  instances  are  selected  out  of  many,  as  sufficient 
to  shew  that  in  the  conduct  of  war  congress  possessed  no 
'  exclusive'  power,  and  that  the  colonies  (or  states)  retain- 
ed, and  actually  asserted,  their  own  sovereign  right  and 
power  as  to  that  matter.  And  not  as  to  that  matter  alone, 
for  New  Hampshire  established  post  offices.  The  words 
of  our  author  may,  indeed,  import  that  the  power  of  con- 
gress over  the  subject  of  war  was  '  exclusive'  only  as  to 
such  military  and  naval  operations  as  he  considers  nation- 
al, that  is,  such  as  were  undertaken  by  the  joint  power  of 
all  the  colonies ;  and  if  so,  he  is  correct.  But  the  comma 
after  the  word  '  national'  suggests  a  different  interpretation. 
At  all  events,  the  facts  which  I  have  mentioned  prove  that 
congress  exercised  no  power  which  was  considered  as 
abridging  the  absolute  sovereignty  and  independence  of 
the  states. 

"  Many  of  those  powers  which,  for  greater  convenience, 
were  entrusted  exclusively  to  congress,  could  not  be  effec- 
tually exerted  except  by  the  aid  of  the  state  authorities. 
The  troops  required  by  congress  were  raised  by  the  states, 
and  the  commissions  of  their  officers  were  countersigned 
by  the  governors  of  the  states.  Congress  were  allowed  to 
issue  bills  of  credit,  but  they  could  not  make  them  a  legal 
tender,  nor  punish  the  counterfeiter  of  them.  Neither 
could  they  bind  the  states  to  redeem  them,  nor  raise  by 
their  own  authority  the  necessary  funds  for  that  purpose. 
Congress  received  ambassadors  and  other  public  ministers, 
yet  they  had  no  power  to  extend  to  them  that  protection 
which  they  receive  from  the  government  of  every  sove- 
reign nation.  A  man  by  the  name  of  De  Longchamps 
entered  the  house  of  the  French  minister  plenipotentiary 
in  Philadelphia,  and  there  threatened  violence  to  the  per- 


CONSTITUTIONAL    LAW.  71 

son  of  Francis  Barbe  Marbois,  secretary  of  the  French  le- 
gation, consul  general  of  France,  and  consul  for  the  state 
of  Pennsylvania :  he  afterwards  assaulted  and  beat  him  in 
the  public  street.     For  this  offence,  he  was  indicted  and 
tried  in  the  court  of  oyer  and  terminer  of  Philadelphia, 
and  punished  under  its  sentence.     The  case  turned  chiefly 
upon  the  law  of  nations,  with  reference  to  the  protection 
which  it  secures  to  foreign  ministers.     A   question   was 
made,  whether  the  authorities  of  Pennsylvania  should  not 
deliver  up  De  Longchamps  to  the  French  government  to 
be  dealt  with  at  their  pleasure.     It  does  not  appear  that 
the    federal  government    was  considered  to   possess    any 
power  over  the  subject,  or  that  it  was  deemed  proper  to 
invoke   its  counsel  or  authority  in  any  form.     This  case 
occurred  in    1784,  after  the  adoption  of  the  articles  of 
confederation ;   but  if  the  powers  of  the  federal  govern- 
ment were  less  under  those  articles  than  before,  it  only 
proves  that,  however  great  its  previous  powers  may  have 
been,  they  were  held  at  the  will  of  the  states,  and  were 
actually  recalled  by  the  articles  of  confederation.     Thus 
it  appears  that,  in  the  important  functions  of  raising  an 
army,   of  providing  a  public   revenue,   of  paying   public 
debts,  and  giving  security  to  the  persons  of  foreign  minis- 
ters, the  boasted  '  sovereignty'  of  the  federal  government 
was  merely  nominal,  and  owed  its  entire  efficiency  to  the 
co-operation  and  aid  of  the  state  governments.     Congress 
had  no  power  to  coerce  those  governments ;  nor  could  it 
exercise  any  direct  authority  over  their  individual  citizens. 
"  Although  the  powers  actually  assumed  and  exercised 
by  congress  were  certainly  very  great,  they  were  not  al- 
ways acquiesced  in,  or  allowed,  by  the  states.     Thus,  the 
power  to  lay  an  embargo  was  earnestly  desired  by  them, 
but  was  deni'.J  by  the    states.     And  in  order  the  more 
clearly  to  indicate  that  many  of  their  powers  were  exercised 
merely  by  sufferance,  and  at  the  same  time  to  lend  a  sanc- 
tion to  their  authority  so  far  as  they  chose  to  allow  it,  it 
was  deemed  necessary,  by  at  least  one  of  the  states,  to  pass 
laws  indemnifying  those  who  might  act  in  obedience  to  the 
resolutions  of  that  body.(H) 

(n)  This  was  done  by  Pennsylvania.    See  2  Dallas's  Col.  L.  of 
Penn.  3. 


72  LECTVRES    ON 

"A  conclusive  proof,  however,  of  the  true  relation 
which  the  colonies  held  to  the  revolutionary  government, 
even  in  the  opinion  of  congress  itself,  is  furnished  by  their 
own  journals.  In  June  1776,  that  body  recommended  the 
passing  of  laws  for  the  punishment  of  treason ;  and  they 
declare  that  the  crime  shall  be  considered  as  committed 
against  the  colonies  indicidualbj,  and  not  against  them  all, 
as  united  or  confederated  together.  This  could  scarcely 
have  been  so,  if  they  had  considered  themselves  '  a  go- 
vernment de  facto  and  de  jure,'  clothed  with  '  sovereign 
authority.'  The  author,  however,  is  not  satisfied  to  rest 
his  opinion  upon  historical  facts;  he  seeks  also  to  fortify 
himself  by  a  judicial  decision.  He  informs  us  that,  '  soon 
after  the  organization  of  the  present  government,  the  ques- 
tion [of  the  powers  of  the  continental  congress]  was  most 
elaborately  discussed  before  the  supreme  court  of  the  Uni- 
ted States,  in  a  case  calling  for  an  exposition  of  the  ap- 
pellate jurisdiction  of  congress  in  prize  causes,  before  the 
ratification  of  the  confederation.  The  result  of  that  ex- 
amination was,  that  congress  before  the  confederation  pos- 
sessed, by  the  consent  of  the  people  of  the  United  States, 
sovereign  and  supreme  powers  for  national  purposes;  and, 
among  others,  the  supreme  powers  of  peace  and  war,  and, 
as  an  incident,  the  right  of  entertaining  appeals  in  the  last 
resort,  in  prize  causes,  even  in  opposition  to  state  legisla- 
tion. And  that  the  actual  powers  exercised  by  congress, 
in  respect  to  national  objects,  furnished  the  best  exposition 
of  its  constitutional  authority,  since  they  emanated  from 
the  people,  and  were  acquiesced  in  by  the  people.' 

"  There  is  in  this  passage  great  want  of  accuracy,  and 
perhaps  some  want  of  candour.  The  author,  as  usual,  ne- 
glects to  cite  the  judicial  decision  to  which  he  alludes,  but 
it  must  be  the  case  of  Pcnhallow  and  others  against  Doane's 
administrators.  (3  Dallas's  Reports  54.)  Congress,  in 
November  1775,  passed  a  resolution,  recommending  to  the 
several  colonies  to  establish  prize  courts,  with  a  right  of 
appeal  from  their  decisions  to  congress.  In  1776,  New 
Hampshire  accordingly  passed  a  law  upon  the  subject,  by 
which  an  appeal  to  congress  was  allowed  in  cases  of  cap- 
ture by  vessels  in  the  service  of  the  united  colonies ;  but 
where  the  capture  was  made  by  '  a  vessel  in  the  service  of 
the  united  colonies  and  of  any  particular  colony  or  person 


CONSTITUTIONAL    LAW.  73 

together,  the  appeal  was  allowed  to  the  superior  court  of 
New  Hampsliire.  The  brigantine  Susanna  was  captured 
by  a  vessel  owned  and  commanded  by  citizens  of  New 
Hampshire,  and  was  duly  condemned  as  prize  by  her  own 
court  of  admiralty.  An  appeal  was  prayed  to  congress 
and  denied  ;  and  thereupon  an  appeal  to  the  superior  court 
of  New  Hampshire  was  prayed  and  allowed.  From  the  de- 
cision of  this  court  an  appeal  was  taken  to  congress,  in 
the  mode  prescribed  by  their  resolution,  and  the  case  was 
disposed  of  by  the  court  of  appeals,  appointed  by  congress 
to  take  cognizance  of  such  cases.  After  the  adoption  of 
the  present  constitution  and  the  organization  of  the  judi- 
ciary system  under  it,  a  libel  was  filed  in  the  district  court 
of  New  Hampshire,  to  carry  into  effect  the  sentence  of  the 
court  of  appeals  above  mentioned.  The  cause  being  legally 
transferred  to  the  circuit  court,  was  decided  there,  and  an 
appeal  allowed  to  the  supreme  court.  That  court,  in  its 
decision,  sustains  the  jurisdiction  of  the  court  of  appeals 
established  by  congress.  Mr.  justice  Paterson's  opinion 
is  founded  mainly  upon  these  grounds  :  That  the  powers 
actually  exercised  by  congress  ought  to  be  considered  as 
legitimate,  because  they  were  such  as  the  occasion  abso- 
lutely required,  and  were  approved  and  acquiesced  in  by 
'  the  people ;'  that  the  authority  ultimately  and  finally  to 
decide  on  all  matters  and  questions  touching  the  law  of 
nations  does  reside  and  is  vested  in  the  sovereign  supreme 
power  of  war  and  peace ;'  that  this  power  was  lodged  in 
the  continental  congress  by  the  consent  and  acquiescence 
of  'the  people;'  that  the  legality  of  all  captures  on  the 
high  seas  must  be  determined  by  the  law  of  nations;  that 
New  Hampshire  had  committed  herself  upon  this  subject  by 
voting  in  favour  of  the  exercise  of  the  same  power  by  con- 
gress in  the  casvof  the  brig  Active;  that  as  the  commis- 
sion, under  which  the  capture  in  the  case  under  considera- 
tion was  made,  was  issued  bv  congress,  it  resulted,  of  ne- 
cessity, that  the  validity  of  all  captures  made  by  virtue  of 
that  commission  should  be  judged  of  by  congress,  or  its  con- 
stituted authority,  because  *  every  one  must  be  amenable  to 
the  authority  under  which  he  acts.'  It  is  evident  that  this 
opinion,  while  it  sustains  the  authority  of  congress  in  the 
particular  case,  does  not  prove  its  general  supremacy,  nor 
that  the  states  had  surrendered  to  it  anv  part  of  their  so- 
7 


74  LECTURES    ON 

vereignty  and  independence.  On  the  contrary,  it  aflirms 
that  the  '  sovereign  and  supreme  power  ot'  war  and  peace,' 
was  assumed  by  congress,  and  that  the  exercise  of  it  be- 
came legitimate,  only  because  it  was  approved  and  accjui- 
esced  in ;  and  that  being  thus  legitimated,  the  appellate 
jurisdiction  in  prize  cases  followed  as  a  necessary  incident. 
All  the  powers,  which  Paterson  contends  for  as  exercised 
by  congress,  may  well  be  conceded,  without  in  the  slightest 
degree  affecting  the  question  before  us ;  they  were  as  con- 
sistent with  the  character  of  a  federative,  as  with  that  of  a 
consolidated  government.  He  does  not  tell  us  to  what  peo- 
ple he  alludes,  when  he  says  that  the  powers  exercised  by 
congress  were  approved  and  ratified  by  '  the  people.'  He 
does  not,  in  any  part  of  his  opinion,  authorize  the  idea  of 
the  author,  that  '  congress  possessed,  before  the  confede- 
ration, by  the  consent  of  the  people  of  United  States,  so- 
vereign and  supreme  powers  for  national  purposes.'  On 
the  contrary,  as  to  one  of  these  powers,  he  holds  the  oppo- 
site language ;  and  therefore  it  is  fair  to  presume,  that  he 
intended  to  be  so  understood  in  regard  to  all  the  rest.  This 
is  his  language  :  '  The  authority  exercised  by  congress,  in 
granting  commissions  to  privateers,  was  approved  and  rati- 
fied by  the  sevei-al  colonies  or  states,  because  they  received 
and  filled  up  the  commissions  and  bonds,  and  returned  the 
latter  to  congress.'  This  approval  and  ratification  alone  ren- 
dered, in  his  opinion,  the  exercise  of  this,  and  other  simi- 
lar powers  assumed  by  congress,  legitimate. 

"  Judge  Iredell,  in  delivering  his  opinion,  goes  much  more 
fully  into  the  examination  of  the  powers  of  the  revolutiona- 
ry government.  He  thinks  that,  as  the  power  of  peace 
and  war  was  entrusted  to  congress,  they  held,  as  a  neces- 
sary incident,  the  power  to  establish  prize  courts;  and  that 
whatever  powers  they  did  in  fact  exercise,  were  acquiesced 
in  and  consented  to,  and,  consequently  legitimated  and 
confirmed.  But  he  leaves  no  room  to  doubt  as  to  the 
source  whence  this  confirmation  was  derived.  After  prov- 
ing that  the  several  colonies  were,  to  all  intents  and  pur- 
poses, separate  and  distinct,  and  that  they  did  not  form 
'  one  people'  in  any  sense  of  the  term,  he  says,  '  If  con- 
gress, previous  to  the  articles  of  confederation,  possessed 
any  authority,  it  was  an  authority,  as  I  have  shewn,  derived 
from  the  people  of  each  province,  in  the  first  instance.' 


CONSTITUTIONAL    LAW.  75 

'  The  authority  was  not  possessed  by  congress,  unless  given 
by  all  the  states.' — '  I  conclude,  therefore,  that  every  par- 
ticle of  authority,  which  originally  resided  either  in  con- 
gress or  in  any  branch  of  the  state  governments,  was  de- 
rived from  the  people  who  were  permanent  inhabitants  of 
each  province,  in  the  first  instance,  and  afterwards  became 
citizens  of  each  state;  that  this  authority  was  conveyed  by 
each  body  politic  separately,  and  not  by  all  the  people  in 
the  several  provinces  or  states  jointly.'  No  language  could 
be  stronger  than  this,  to  disaffirm  the  author's  conclusion, 
that  the  powers  exercised  by  congress  were  exercised  '  by 
the  consent  of  the  people  of  the  United  States.'  Certainly 
Iredell  did  not  think  so. 

"  The  other  two  judges,  Blair  and  Gushing,  affirm  the 
general  propositions  upon  which  Paterson  and  Iredell  sus- 
tained the  power  of  congress  in  the  particular  case,  but 
lend  no  support  to  the  idea  of  any  such  unity  among  the 
people  of  the  several  colonies  or  states,  as  our  author  sup- 
poses to  have  existed.  Gushing,  without  formally  discus- 
sing the  question,  expressly  says  that  '  he  has  no  doubt  of 
the  sovereignty  of  the  states.' 

"  This  decision,  then,  merely  affirms,  what  no  one  has 
ever  thought  of  denying,  that  the  revolutionary  government 
exercised  every  power  which  the  occasion  required ;  that, 
among  these,  the  powers  of  peace  and  war  were  most  im- 
portant, because  congress,  alone,  represented  all  the  colo- 
nies, and  could,  alone,  express  the  general  will,  and  wield 
the  general  strength  ;  that  wherever  the  powers  of  peace 
and  war  are  lodged,  belongs  also  the  right  to  decide  all 
questions  touching  the  laws  of  nations;  that  prize  causes 
are  of  this  character;  and,  finally,  that  all  these  powers 
were  not  derived  from  any  original  grant,  but  are  to  be  con- 
sidered as  belonging  to  conorress,  merchi  because  congress 
exercised  them,  and  because  they  were  sustained  in  so  do- 
ing by  the  approbation  of  the  several  colonies  or  states, 
whose  representatives  they  were.  Surely,  then,  our  au- 
thor was  neither  very  accurate  nor  very  candid,  in  so  sta- 
ting this  decision  as  to  give  rise  to  the  idea  that,  in  the 
opniion  of  the  supreme  court,  congress  possessed  original 
sovereign  powers,  by  the  consent  of  '  the  people  of  the 
'United  States.'  Even,  however,  if  the  court  had  so  deci-"^ 
i'  ded,  in  express  terms,  it  would  have  been  of  no  value  in  i 
vthe  present  enquiry,  as  will  by-and-by  be  shewn."  -^ 


}'. 


I 


LECTURES    ON    CONSTITUTIONAL    LAW.  77 


LECTURE  III. 

We  come  next  to  the  declaration  of  independence,  and 
to  the  novel  and  original  idea,  that  it  did  not  operate  the 
separate  independence  and  individual  sovereignly  of  the 
several  states,  but,  that,  as  the  declaration  was  the  united 
act  of  all,  so  it  operated  to  make  the  united  colonies  free 
and  independent  as  one  people,  and  in  that  character  only. 
This,  it  is  very  clear,  is  the  position  industriously  insinuated 
by  the  learned  author,  although,  as  usual,  he  is  by  no 
means  very  specific  in  stating  his  proposition,  lest,  per- 
haps, it  might  be  the  more  startling  from  being  more  clearly 
discerned  in  its  first  announcement. 

"  §  211.  In  the  next  place,"  says  judge  Story,  "  the  co- 
lonies did  not  severally  act  for  themselves,  and  proclaim 
their  own  independence.  It  is  true,  that  some  of  the 
states  had  previously  formed  incipient  governments  for 
themselves ;  but  it  was  done  in  compliance  with  the  re- 
commendations of  congress.(o)  Virginia,  on  the  29th  of 
June  1776,  by  a  convention  of  delegates,  declared  '  the 
government  of  this  country,  as  formerly  exercised  under 
the  crown  of  Great  Britain,  totally  dissolved ;'  and  pro- 
ceeded to  form  a  new  constitution  of  government.  New 
Hampshire  also  formed  a  government,  in  December,  1775, 
which  was  manifestly  intended  to  be  temporary,  '  during 
(as  they  said)  the  unhappy  and  unnatural  contest  with 
Great  Britain. '(6)  New  Jersey,  too,  established  a  frame 
of  government,  on  the  2d  of  July  1770;  but  it  was  ex- 
pressly declared,  that  it  should  be  void  upon  a  reconcilia- 
tion with  Grea  ■  Brirain.(r)  And  South  Carolina,  in 
March  1776,  adopted  a  constitution  of  government ;  but 
this  was,  in  like  manner,  '  established  until  an  accommo- 
dation between  Great  Britain  and  America  could  be  ob- 

(fl)  Journal  of  Congress,  1775,  p.  115,  231,  23.5,  279;  1  Pitk. 
Hist.  351,  355 ;  Marsh.  Colon,  ch.  14,  p.  441,  447  ;  9  Hening's  Stat. 
112,  113;  9  Dane's  Abridg.  App.  §  5,  p.  16. 

(i)  2  Belk.  N.  Hamp.  ch.  25,  p.  30G,  308,  310;  1  Pitk.  Hist.  351, 
355. 

(c)  Stokes's  Hist.  Colon.  51,  75. 
7# 


78  LECTURES    ON 

tained.'(d')  But  the  declaration  of  the  independence  of 
all  the  colonies  was  the  united  act  of  all.  It  was  '  a  de- 
claration by  the  representatives  of  the  United  States  of 
America  in  congress  assembled ;' — '  by  the  delegates  ap- 
pointed by  the  good  people  of  the  colonies,'  as  in  a  prior 
declaration  of  rights  they  were  called. (e)  It  was  not  an 
act  done  by  the  state  governments  then  organized  ;  nor  by 
persons  chosen  by  them.  It  was  emphatically  the  act  of 
the  whole  people,  of  the  united  colonies,  by  the  instru- 
mentality of  their  representatives,  chosen  for  that,  among 
other  purposes. (/")  It  was  an  act  not  competent  to  the  state 
governments,  or  any  of  them  as  organized  under  their 
charters,  to  adopt.  Those  charters  neither  contemplated 
the  case,  nor  provided  for  it.  It  was  an  act  of  original,  inhe- 
rent sovereignty  by  the  people  themselves,  resulting  from 
their  right  to  change  the  form  of  government,  and  to 
institute  a  new  government,  whenever  necessary  for  their 
safety  and  happiness.  So  the  declaration  of  independence 
treats  it.  No  state  had  presumed  of  itself  to  form  a  new 
government,  or  to  provide  for  the  exigencies  of  the  times, 
without  consulting  congress  on  the  subject ;  and  when 
they  acted,  it  was  in  pursuance  of  the  recommendation  of 
congress.  It  was,  therefore,  the  achievement  of  the  whole 
for  the  benefit  of  the  whole.  The  people  of  the  united 
colonies  made  the  united  colonies  free  and  independent 
states,  and  absolved  them  from  all  allegiance  to  the  British 
crown.  The  declaration  of  independence  has  accordingly 
always  been  treated,  as  an  act  of  paramount  and  sovereign 
authority,  complete  and  perfect  per  sc,  and  ipso  facto  work- 
ing an  entire  dissolution  of  all  political  connexion  with 
and  allegiance  to  Great  Britain.  And  this  not  merely  as  a 
practical  fact,  but  in  a  legal  and  constitutional  view  of  the 
matter  by  courts  of  justice. (^) 

"§212.  In  the  debates  in  the  South  Carolina  legisla- 
ture, in  January  1788,  respecting  the  propriety  of  calling 
a  convention  of  the  people  to  ratify  or  reject  the  constitu- 
tion, a  distinguished  statesman(A)  used  the  following  lan- 

(<Z)  Stokes's  Hist.  Colon.  105;  1  Pitk.  Hist.  355. 
(e)  Journal  1776,  p.  241  ;  Journal  1774,  p.  27,  45. 
(/)  2  Dall.  470,  471.     Per  Jay,  C.  J. ;  l»  Dane's  Abridg.  App.  § 
12,  13,  p.  23,  24. 

(0-)  2  Dallas's  R.  470. 

(/()  Mr.  Charles  Cotcsworth  Pinckney. 


CONSTITUTIONAL    LAW. 


79 


guage  :  '  This  admirable  manifesto  (i.  e.  the  declaration  of 
independence)  sufficiently  refutes  the  doctrine  of  the  indi- 
vidual sovereignty  and  independence  of  the  several  states.  In 
that  declaration  the  several  states  are  not  even  enumerated  ; 
but  after  reciting  in  nervous  language,  and  with  convincing 
arguments  our  right  to  independence,  and  the  tyranny, 
which  compelled  us  to  assert  it,  the  declaration  is  made  in 
the  following  words:  'We,  therefore,  the  representatives 
of  the  United  States,  &c.  do,  in  the  name,  &lc.  of  the 
good  people  of  these  colonies,  solemnly  publish,  &c.  that 
these  united  colonies  are,  and  of  right  ought  to  be,  free 
and  independent  states.'  The  separate  independence  and 
individual  sovereignty  of  the  several  states  were  never 
thought  of  by  the  enlightened  band  of  patriots,  who  framed 
this  declaration.  The  several  states  are  not  even  mentioned 
by  name  in  any  part,  as  if  it  was  intended  to  impress  the 
maxim  on  America,  that  our  freedom  and  independence 
arose  from  our  union,  and  that  without  it  we  could  never 
be  free  or  independent.  Let  us  then  consider  all  attempts 
to  weaken  this  union  by  maintaining,  that  each  state  is  sepa- 
rately and  individually  independent,  as  a  species  of  politi- 
cal heresy,  which  can  never  benefit  us,  but  may  bring  on 
us  the  most  serious  distresses." (<) 

(«)  Debates  in  South  Carolina,  1788,  printed  by  A.  £.  Miller, 
Charleston,  1831,  p.  43,  44.— Mr.  Adams,  in  his  Oration  on  the  4th 
of  July  1831,  which  is  valuable  for  its  view^s  of  constitutional  prin- 
ciples, insists  upon  the  same  doctrine  at  considerable  length. 
Though  it  has  been  published  since  the  original  preparation  of  these 
lectures,  I  gladly  avail  myself  of  an  opportunity  to  use  his  autho- 
rity in  corroboration  of  the  same  views.  "The  union  of  the  colo- 
nics had  preceded  this  declaration,  [of  independence,]  and  even 
the  commencement  of  the  war.  The  declaration  was  joint,  that 
the  united  colonies  were  free  and  independent  states,  but  not  that 
any  one  of  them  was  a  free  and  independent  state,  separate  from 
the  rest." — "The  declaration  of  independence  was  a  social  com- 
pact, by  which  the  hole  people  covenanted  with  each  citizen,  and 
each  citizen  with  the  whole  people,  that  the  united  colonies  were, 
and  of  right  ought  to  be,  free  and  independent  states.  To  this  com- 
pact union  was  as  vital,  as  freedom  or  independence." — "The  de- 
claration of  independence  announced  the  severance  of  the  thirteen 
united  colonies  from  the  rest  of  the  British  empire,  and  the  ex- 
istence of  their  people  from  that  day  forth  as  an  independent  na- 
tion. The  people  of  all  the  colonies,  speaking  by  their  representa- 
tives, constituted  themselves  one  moral  person  before  the  face  of 
their  fellow  men." — "The  declaration  of  independence  was  not  a 


80  LECTURES    ON 

"  §213.  In  the  next  place  we  have  seen,  that  the  power 
to  do  this  act  was  not  derived  from  the  state  governments; 
nor  was  it  done  generally  with  their  co-operation.  The 
question  then  naturally  presents  itself,  if  it  is  to  be  consi- 
dered as  a  national  act,  in  what  manner  did  the  colonies 
become  a  nation,  and  in  what  manner  did  congress  be- 
come possessed  of  this  national  power?  The  true  answer 
must  be,  that  as  soon  as  congress  assumed  powers  and 
passed  measures,  which  were  in  their  nature  national,  to 
that  extent  the  people,  from  whose  acquiescence  and  con- 
sent they  took  effect,  must  be  considered  as  agreeing  to 
form  a  nation. (A:)  The  congress  of  1774,  looking  at  the 
general  terms  of  the  commissions,  under  which  the  dele- 
gates were  appointed,  seemed  to  have  possessed  the  power 
of  concerting  such  measures,  as  they  deemed  best,  to  re- 
dress the  grievances,  and  preserve  the  rights  and  liberties 
of  all  the  colonies.  Their  duties  seem  to  have  been  prin- 
cipally of  an  advisory  nature ;  but  the  exigencies  of  the 
times  led  them  rather  to  follow  out  the  wishes  and  objects 
of  their  constituents,  than  scrupulously  to  examine  the 
words,  in  which  their  authority  was  communicated. (/)  The 
congress  of  1775  and  177G,  were  clothed  with  more  am- 
ple powers,  and  the  language  of  their  commissions  gene- 
rally, was  sufficiently  broad  to  embrace  the  right  to  pass 
measures  of  a  national  character  and  obligation.  The  cau- 
tion necessary  at  that  period  of  the  revolutionary  struggle, 
rendered  that  language  more  guarded  than  the  objects  re- 
ally in  view  would  justify  ;  but  it  was  foreseen,  that  the 
spirit  of  the  people  would  eagerly  second  every  measure 
adopted  to  further  a  general  union  and  resistance  against 
the  British  claims.  The  congress  of  1775,  accordingly 
assumed  at  once  (as  we  have  seen)  the  exercise  of  some  of 
the  highest  functions  of  sovereignty.  They  look  measures 
for  national  defence  and  resistance;  they  followed  up  the 
prohibitions  upon  trade  and  intercourse  with  Great  Bri- 

declaration  of  liberty  merely  acquired,  nor  was  it  a  form  of  govern- 
ment. Tlie  people  of  the  colonies  were  already  free,  and  their 
forms  of  government  were  various.  They  were  all  colonios  of  a 
monarchy.  The  king  of  Great  Britain  was  their  common  sove- 
reign." 

(k)  3  Dall.  R.  80,  81,  90,  91,  109,  110,  111,  117. 

(/)3DalI.  R.  91. 


CONSTITUTIONAL    LAW. 


81 


tain  ;  they  raised  a  national  army  and  navy,  and  authorized 
limited  national  hostilities  against  Great  Britain;  they 
raised  money,  emitted  bills  of  credit,  and  contracted  debts 
upon  national  account ;  they  established  a  national  post 
office ;  and,  finally,  they  authorized  captures  and  condem- 
nation of  prizes  in  prize  courts,  with  a  reserve  of  appel- 
late jurisdiction  to  themselves. 

"§214.  The  same  body,  in  1776,  took  bolder  steps, 
and  exerted  powers,  which  could  in  no  other  manner  be 
justified  or  accounted  for,  than  upon  the  supposition,  that 
a  national  union  for  national  purposes  already  existed,  and 
that  the  congress  was  invested  with  sovereign  power  over 
all  the  colonies  for  the  purpose  of  preserving  the  common 
rights  and  liberties  of  all.  They  accordingly  authorized 
general  hostilities  against  the  persons  and  property  of  Bri- 
tish subjects ;  they  opened  an  extensive  commerce  with  fo- 
reign countries,  regulating  the  whole  subject  of  imports 
and  exports ;  they  authorized  the  formation  of  new  govern- 
ments in  the  colonies;  and,  finally,  they  exercised  the  so- 
vereign prerogative  of  dissolving  the  allegiance  of  all  colo- 
nies to  the  British  crown.  The  validity  of  these  acts  was 
never  doubted  or  denied  by  the  people.  On  the  contrary, 
they  became  the  foundation  upon  which  the  superstructure 
of  the  liberties  and  independence  of  the  United  States  has 
been  erected.  Whatever,  then,  may  be  the  theories  of  in- 
genious men  on  the  subject,  it  is  historically  true,  that  be- 
fore the  declaration  of  independence,  these  colonies  were 
not,  in  any  absolute  sense,  sovereign  states  ;  that  that  event 
did  not  find  them  or  make  them  such,  but  that  at  the  mo- 
ment of  their  separation,  they  were  under  the  dominion  of 
a  superior  controlling  national  government,  whose  powers 
were  vested  in  and  exercised  by  the  general  congress  with 
the  consent  of  the  people  of  all  the  states. (m) 

(m)  This  whole  subject  is  very  amply  discussed  by  Mr.  Dane  in 
his  Appendix  to  the  9th  volume  of  his  Abridgment  of  the  Laws; 
and  many  of  his  views  coincide  with  those  stated  in  the  text.  The 
whole  of  that  Appendix  is  worthy  of  the  perusal  of  every  consti- 
tutional lawyer,  even  though  he  might  differ  from  some  of  the  con- 
clusions of  the  learned  author.  He  will  there  find  much  reason- 
ing from  documentary  evidence  of  a  public  nature,  which  has  not 
hitherto  been  presented  in  a  condensed  or  accurate  shape. 


82  LECTURES    ON 

"§  215.  From  the  moment  of  the  declaration  of  inde- 
pendence, if  not  for  most  purposes  at  an  antecedent  pe- 
riod, the  united  colonies  must  be  considered  as  being  a  na- 
tion de  facto,  having  a  general  government  over  it  created, 
and  acting  by  the  general  consent  of  the  people  of  all  the 
colonies.  The  powers  of  that  government  were  not,  and 
indeed  could  not  be  well  defined.  But  still  its  exclusive 
sovereignty,  in  many  cases,  was  firmly  established  ;  and  its 
controlling  power  over  the  states  was  in  most,  if  not  in  all 
national  measures,  universally  admitted. (w)  The  articles 
of  confederation,  of  which  we  shall  have  occasion  to  speak 
more  hereafter,  were  not  prepared  or  adopted  by  congress 
until  November  1777, (o)  they  were  not  signed  or  ratified 
by  any  of  the  states  until  July  1778;  and  they  were  not 
ratified,  so  as  to  become  obligatory  upon  all  the  states, 
until  March  1781.  In  the  intermediate  time,  congress 
continued  to  exercise  the  powers  of  a  general  government, 
whose  acts  were  binding  on  all  the  states.  And  though 
they  constantly  admitted  the  states  to  be  '  sovereign  and 
independent  communities  ;\p)  yet  it  must  be  obvious,  that 
the  terms  were  used  in  the  subordinate  and  limited  sense 
already  alluded  to ;  for  it  was  impossible  to  use  them  in 
any  other  sense,  since  a  majority  of  the  states  could,  by 
their  public  acts  in  congress,  control  and  bind  the  mino- 
rity. Among  the  exclusive  powers  exercised  by  congress, 
were  the  power  to  declare  war  and  make  peace;  to  autho- 
rize captures ;  to  institute  appellate  prize  courts ;  to  di- 

Some  interesting  views  of  this  subject  are  also  presented  in  pre- 
sident Monroe's  message  on  internal  improvements,  on  the  4th  of 
May  1822,  appended  to  liis  message  respecting  the  Cumberland 
road.     See,  especially,  pages  8  and  f). 

When  Mr.  chief  justice  Marshall,  in  Offden  v.  Gibbons,  (9 
Wheat.  R.  187,)  admits,  that  tlie  states,  before  the  formation  of  the 
constitution,  were  sovereign  and  independent,  and  were  connected 
with  each  other  only  by  a  league,  it  is  manifest,  tliat  he  uses  the 
word  "sovereign"  in  a  very  restricted  sense.  Under  the  confe- 
deration, there  were  many  limitations  upon  the  powers  of  the 
states. 

(n)  See  Penhalloio  v.  Doanr,  3  Dall.  R.  54;  Ware  v.  Hijlton,  3 
Dall.  199,  per  Chase,  J.  See  the  circular  letter  of  congress,  13th 
September  1779;  .5  Jour.  Cong.  341,  348,  349. 

(o)  Jour,  of  Cong.  1777,  p.  502. 

{]))  See  letter  of  17th  Nov.  1777,  by  congress,  recommending 
the  articles  of  confederation;  Jour,  of  1777,  p.  513,  514. 


CONSTITUTIONAL    LAW.  83 

rect  and  control  all  national,  military,  and  naval  opera- 
tions ;  to  form  alliances  and  make  treaties ;  to  contract 
debts  and  issue  bills  of  credit  upon  national  account.  In 
respect  to  foreign  governments,  we  were  politically  known 
as  the  United  States  only;  and  it  was  in  our  national  ca- 
pacity, as  such,  that  we  sent  and  received  ambassadors,  en- 
tered into  treaties  and  alliances,  and  were  admitted  into 
the  general  community  of  nations,  who  might  exercise  the 
right  of  belligerents,  and  claim  an  equality  of  sovereign 
powers  and  prerogatives. (^) 

"  §  216.  In  confirmation  of  these  views,  it  may  not  be 
without  use  to  refer  to  the  opinions  of  some  of  our  most 
eminent  judges,  delivered  on  occasions  which  required  an 
exact  examination  of  the  subject.  In  Chisholm's  Execu- 
tors V.  The  State  of  Georgia,  (2  Dall.  419,  470, )(r)  Mr. 
chief  justice  Jay,  who  was  equally  distinguished  as  a  re- 
volutionary statesman  and  a  general  jurist,  expressed  him- 
self to  the  following  effect :  '  The  revolution,  or  rather 
the  declaration  of  independence,  found  the  people  already 
united  for  general  purposes,  and  at  the  same  time  pro- 
viding for  their  more  domestic  concerns  by  state  con- 
ventions and  other  temporary  arrangements.  From  the 
crown  of  Great  Britain,  the  sovereignty  of  their  country 
passed  to  the  people  of  it ;  and  it  was  then  not  an  uncom- 
mon opinion,  that  the  unappropriated  lands,  which  belong- 
ed to  that  crown,  passed,  not  to  the  people  of  the  colony 
or  states  within  whose  limits  they  were  situated,  but  to  the 
whole  people.  On  whatever  principle  this  opinion  rested, 
it  did  not  give  way  to  the  other  ;  and  thirteen  sovereignties 
were  considered  as  emerging  from  the  principles  of  the  re- 
volution, combined  by  local  convenience  and  considera- 
tions. The  people,  nevertheless,  continued  to  consider 
themselves,  in  a  national  point  of  view,  as  one  people ;  and 
they  continued  without  interruption  to  manage  their  na- 
tional concerns  accordingly.'  In  Penhalloic  v.  Doane,  (3 
Dall.  R.  54,)(i)  Mr.  justice  Patterson  (who  was  also  a  re- 
volutionary statesman)  said,  speaking  of  the  period  before 
the  ratification  of  the  confederation  :  '  The  powers  of  con- 
gress were  revolutionary  in  their  nature,  arising  out  of 

{q)  1  Amer.  Museum,  15;  1  Kent.  Comm.  107,  198,  199. 
{r)  S.  C.  1  Peters's  Cond.  R.  6.35. 
{s)  S.  C.  1  Peters's  Cond.  R.  21. 


84  LECTURES    ON 

events  adequate  to  every  national  emergency,  and  coexten- 
sive with  the  object  to  be  attained.  Congress  was  the  ge- 
neral, supreme,  and  controlling  council  of  the  nation,  the 
centre  of  the  union,  the  centre  of  force,  and  the  sun  of 
the  political  system.  Congress  raised  armies,  fitted  out  a 
navy,  and  prescribed  rules  for  their  government,  &lc.  &c. 
These  high  acts  of  sovereignty  were  submitted  to,  acqui- 
esced in,  and  approved  of  by  the  people  of  America,  &c. 
&c.  The  danger  being  imminent  and  common,  it  became 
necessary  for  the  people  or  colonies  to  coalesce  and  act  in 
concert,  in  order  to  divert,  or  break  the  violence  of  the 
gathering  storm.  They  accordingly  grew  into  union,  and 
formed  one  great  political  body,  of  which  congress  was 
the  directing  principle  and  soul,  &-c.  &/C.  The  truth 
is,  that  the  states,  individually,  were  not  known,  nor  re- 
cognized as  sovereign  by  foreign  nations,  nor  are  they 
now.  The  states  collectively,  under  congress,  as  their  con- 
necting point  or  head,  were  acknowledged  by  foreign  pow- 
ers, as  sovereign,  particularly  in  that  acceptation  of  the 
term,  which  is  applicable  to  all  great  national  concerns, 
and  in  the  exercise  of  which,  other  sovereigns  would  be 
more  immediately  interested.'  In  TFare  v.  Hylttn,  (3  Dall. 
199,){<)  Mr.  justice  Chase  (himself  also  a  revolutionary 
statesman)  said :  '  It  has  been  enquired,  what  powers  con- 
gress possessed  from  the  first  meeting  in  September  1774, 
until  the  ratification  of  the  confederation  on  the  first  of 
March  1781.  It  appears  to  me,  that  the  powers  of  con- 
gress during  that  whole  period  were  derived  from  the  peo- 
ple they  represented,  expressly  given  through  the  medium 
of  their  state  conventions  or  state  legislatures;  or  that  af- 
ter they  were  exercised,  they  were  impliedly  ratified  by  the 
acquiescence  and  obedience  of  the  people,  &lc.  The  pow- 
ers of  congress  originated  from  necessity,  and  arose  out  of 
it,  and  were  only  limited  by  events;  or,  in  other  words, 
they  were  revolutionary  in  their  nature.  Their  extent  de- 
pended on  the  exigencies  and  necessities  of  public  affairs. 
I  entertain  this  general  idea,  that  the  several  states  retain- 
ed all  internal  sovereignty ;  and  that  congress  properly 
possessed  the  rights  of  external  sovereignty.  In  deciding 
on  the  powers  of  congress,  and  of  the  several  states  be- 
fore the  confederation,  I  see  but  one  safe  rule,  namely, 

(0  S.  C.  1  Peters's  Cond.  R.  99. 


CONSTITUTIONAL    LAW.  OO 

that  all  the  powers  actually  exercised  by  congress  before 
that  period  were  rightfully  exercised,  on  the  presumption 
not  to  be  controverted,  that  they  were  so  authorized  by 
the  people  they  represented,  by  an  express  or  implied 
grant;  and  that  all  the  powers  exercised  by  the  state  con- 
ventions or  state  legislatures,  were  also  rightfully  exer- 
cised on  the  same  presumption  of  authority  from  the  peo- 
ple.'(M) 

"  §  217.  In  respect  to  the  powers  of  the  continental 
congress  exercised  before  the  adoption  of  the  articles  of 
confederation,  few  questions  were  judicially  discussed  du- 
ring the  revolutionary  contest ;  for  men  had  not  leisure  in 
the  heat  of  war,  nicely  to  scrutinize  or  weigh  such  sub- 
jects ;  inter  arma  silent  leges.  The  people,  relying  on  the 
wisdom  and  patriotism  of  congress,  silently  acquiesced  in 
whatever  authority  they  assumed.  But  soon  after  the  or- 
ganization of  the  present  government,  the  question  was 
most  elaborately  discussed  before  the  supreme  court  of  the 
United  States,  in  a  case  calling  for  an  exposition  of  the  ap- 
pellate jurisdiction  of  congress  in  prize  causes  before  the 
ratification  of  the  confederation. (u)  The  result  of  that 
examination  was,  as  the  opinions  already  cited  indicate, 
that  congress,  before  the  confederation,  possessed,  by  the 
consent  of  the  people  of  the  United  States,  sovereign  and 
supreme  powers  for  national  purposes ;  and  among  others, 
the  supreme  powers  of  peace  and  war,  and,  as  an  inci- 
dent, the  right  of  entertaining  appeals  in  the  last  resort  in 
prize  causes,  even  in  opposition  to  state  legislation.  And 
that  the  actual  powers  exercised  by  congress,  in  respect  to 
national  objects,  furnished  the  best  exposition  of  its  con- 
stitutional authority,  since  they  emanated  from  the  repre- 
sentatives of  the  people,  and  were  acquiesced  in  by  the 
people." 

I  have  here,  as  before,  inserted  the  whole  passage  which 
relates  to  this  remarkable  opinion,  as  to  the  effect  of  the 
declaration  of  independence,  both  because  I  am  unwilling 

(tt)  See  also  1  Kent.  Comm-  Lect.  10,  p.  196;  President  Mon- 
roe's Exposition  and  Message,  4th  of  May  1822,  p.  8,  9,  10,  11. 

(v)  Pcnkalloir  v.  Doane,  3  Dall.  .54,  80,  83,  90,  91,  94,  109,  110, 
111,  112,  117;  Journals  of  Congress,  March  1779,  p.  86  to  88;  1 
Kent.  Comm.  198,  199. 
8 


86  LECTURES    ON 

to  misstate  the  positions  of  the  author,  and  because  I  am 
well  content  to  give  to  it  all  the  benefit  of  that  ability  with 
which  it  is  presented.  I  shall  now  proceed  to  remark  very 
succinctly  upon  several  passages  which  more  particularly 
demand  our  scrutiny  and  observation, 
/i/j^  In  a  preceding  passage,  §  201,  the  learned  author  re- 
marks :  "  Thus  was  organized  under  the  auspices,  and  with 
the  consent  of  the  people,  acting  directly  in  their  primary, 
sovereign  capacity,  and  without  the  intervention  of  the 
functionaries  to  whom  the  ordinary  powers  of  the  govern- 
ment were  delegated  in  the  colonies,  the  first  national  go- 
vernment, which  has  been  very  aptly  called  the  revolution- 
ary government,  since  in  its  origin  and  progress  it  was 
wholly  conducted  upon  revolutionary  principles."  Now 
here,  in  the  first  place,  we  have  a  misstatement  of  the  fact, 
as  is  manifest  from  the  next  preceding  section,  in  which 
it  is  distinctly  said  that  in  some  of  the  states  where  the  legis- 
"  *  latures  were  in  session,  delegates  to  the  congress  of  1774 
ivcre  appointed  "  by  them  ;  that  is,  by  the  functionaries  to 
whom  the  ordinary  powers  of  the  government  were  en- 
trusted." So  that  this  congress  was  composed  of  mem- 
bers chosen  indiftcrently  in  the  several  states,  either  by 
the  legislatures  or  conventions,  as  each  state  thought  pro- 
per ;  a  fact  going  far  to  establish  the  independent  sove- 
reign action  of  each  state,  in  appointing  those  who  were 
to  represent  them  in  this  great  congress  of  nations.  But 
in  the  second  place,  it  would  have  made  no  difference  as  to 
the  matter  in  question,  whether  all  or  none  of  the  states 
had  made  the  appointment  by  conventions,  instead  of  by 
the  ordinary  functionaries  of  government.     For  the  ques- 

(fion  here  is,  whether  this  appointment  of  delegates  was 
state  action,  or  the  action  of  the  great  body  of  the  Ameri- 
can people  composing  one  nation.  Now,  whether  the  ap- 
ipointments  were  made  by  legislatures  or  conventions,  they 
\were  equally  the  result  of  state  action. (?^')  The  legislature 

(jo)  "  A  distinction  has  been  taken  at,  tlic  bar,"  says  judge  Iredell, 
"  between  a  state.,  and  the  people  of  a  state.  It  is  a  distinction  I  am 
not  capable  of  comprehending.  By  a  state  forming  a  republic 
(speaking  of  it  as  a  moral  ])erson,)  /  do  not  mean  the  legislature  of 
the  state,  the  executive  or  the  judiciary,  but  all  the  citizens  tchich 
compose  that  state,  and  are,  if  I  may  so  express  myself,  integral 
parts  of  it,  all  together  forming  a  body  politic."     Of  course  whe- 


CONSTITUTIONAL    LAW. 


87 


no  more  represented  the  individual  state  than  the  conven- 
tion. The  convention  in  each  state  was  the  representa- 
tive of  that  state,  quoad  the  matter  on  which  it  acted.  It 
represented  no  other  state.  It  was  amenable  to  none  other. 
It  was  itself  the  impersonation  of  that  sovereignty.  It  was 
appointed  indeed  "  by  the  people  acting  in  their  primary, 
sovereign  capacity,"  but  yet  as  separate  communities,  and 
not  as  forming  one  great  whole.  It  was,  therefore,  sove- 
reign within  its  own  limits,  but  not  beyond  them.  Accor- 
dingly, their  delegates  looked  only  to  them ;  obeyed  them 
alone ;  submitted  to  their  instructions,  and  were  remov- 
able by  them :  all  which  demonstrably  proves  that  the 
conventions  of  the  states  were  as  distinct  from  each  other 
as  the  "  ordinary  functionaries,"  and  that  the  acts  of  each 
was  in  behalf  and  by  authority  of  its  own  state,  as  a  dis- 
tinct sovereign,  and  not  in  right  of  any  other  part  of  the 
confederated  states,  or  of  the  whole  people  of  America  as 
constituting  one  people.  In  accordance  with  this  charac- 
ter, each  delegation  voted  together,  and  the  majority  of  the 
delegation  determined  the  vote  of  the  state.  Each  state 
had  but  one  vote,  whether  large  or  small,  and  thus,  in  these 
important  features,  the  congress  assumed  the  character  of 
an  assembly  of  ambassadors,  rather  than  that  of  the  legis- 
lature of  a  single  nation. 

Such  was  the  character  of  that  body  which  declared 
independence ;  a  body  composed  of  delegates  from  sepa- 
rate political  societies,  who  had  only  united  their  common 
efforts  for  common  defence,  and  for  the  severance  of  the 
chain  that  bound  them  to  a  common  tyrant,  without  an  act 
indicating  a  design  on  the  part  of  any,  to  surrender  their 
separate  political  character.  Thus  acting,  they  declared 
independence.  In  that  declaration  the  representatives  of 
the  several  colonies  pronounced  that  the  United  Colonies 
were  and  of  right  ought  to  be  free  and  independent  states, 
not  that  they  co^istituted  a  free  and  independent  state. 
Then  plurality  is  acknowledged  and  asserted  by  the  decla- 
ration itself,  and  that  plurality  is  decisive  of  the  fact,  that 
the  independence  of  the  states  themselves,  as  several  poli- 
tical bodies,  was  distinctly  asserted.  It  is  not  true  then  that 

ther  the  action  be  by  a  legislature  or  convention,  it  is  the  same 
thing,  since  neither  constitutes  the  state,  but  on  the  other  hand 
either  represents  it. 


88  LECTURES    ON 

the  states  did  "  not  severally  act  for  themselves ;"  for  the 
delegates  of  each,  in  congress  assembled,  acted  for  their 
respective  states,  though  in  conjunction,  it  is  true,  with  the 
delegates  from  other  states  acting  equally  for  theirs.  And 
/accordingly,  we  find  when  the  treaty  of  peace  was  made, 
each  state  is  distinctly  named  in  the  treaty,  and  tiie  inde- 
pendence of  all  is  as  distinctly  acknowledged. 

But  this  is  not  all.  Before  the  declaration  of  July  4, 
the  commonwealth  of  Virginia  had  formed  a  government 
for  herself  Not  an  incijncnt  government,  as  our  author 
says,  but  a  permanent  and  independent  one,  which  lasted  un- 
til changed  by  her  own^o^  in  the  year  1832.  This  creation 
of  an  independent  government  by  the  state  of  Virginia, 
ipso  facto  constituted  her  an  independent  state,  and  ac- 
cording to  the  notion  of  Mr.  Jay,(2)  the  sovereignty  over 
the  state  must  instantly  have  passed  from  the  crown  of 
Great  Britain  to  the  people  of  the  state.  It  could  not  pass 
to  the  people  of  the  United  States,  for  there  were  none 
such,  since  they  had  not  yet  declared  independence.  The 
first  steps  towards  establishing  the  government  of  Vir- 
ginia were  taken  on  the  6th  day  of  May,  and  the  act 
was  consummated  on  the  29th  of  June  1776.  It  was 
her  own  act,  done  of  her  own  free  will,  and  not  by  com- 
mand, or  even  by  the  recommendation  of  congress.  Con- 
gress, before  the  declaration,  recommended  only  provi- 
sional governments,  like  that  of  New  Hampshire,  to  con- 
tinue "  during  the  unhappy  and  unnatural  contest  with 
Great  Britain."  They  could  not,  with  any  consistency, 
recommend  the  erection  of  a  permanent  government  by 
any  state,  before  they  had  themselves  resolved  on  a  decla- 
ration of  independence  ;  about  which,  it  is  notorious  there 
was  much  division  of  opinion.  But  the  new  government  of 
Virginia  was  permanent,  and  cut  her  loose  from  Great  Bri- 
tain. It  is  therefore  gratuitous  in  judge  Story  to  say  that 
"  no  state  had  presumed  of  itself  to  form  a  new  govern- 
ment without  consulting  congress  on  the  subject;"  for  Vir- 
ginia did  form  such  a  government  without  congressional 
recommendation,  and  did  "  declare  the  former  government 
under  Great  Britain  totally  dissolved,"  before  the  congress 
of  the  United  States  had  resolved  on  independence.  From 

(z)  See  note,  p.  40. 


CONSTITUTIONAL    LAW.  89 

that  moment,  as  judge  Chase  very  justly  observes,  (3  Dall. 
224,)  "Virginia  was  a  free,  sovereign  and  independent 
state."  Nay,  this  learned  judge  goes  farther,  and  expressly 
says  of  the  declaration  of  independence  itself,  that  "  he 
considered  it  as  a  declaration  not  that  the  United  Colonies 
jointly  in  a  collective  capacity  were  independent  states, 
but  that  each  of  them  was  a  sovereign  and  independent  ^  ■ 
state ;  that  is,  that  each  of  them  had  a  right  to  govern  it-  ^ 
self  by  its  own  authority  and  its  own  laws,  ivithout  any 
control  from  any  other  jioioer  upon  earth." [y) 

But  our  learned  author  seems  to  conceive  that  he  settles 
the  question  by  saying,  that  "the  declaration  was  the  uni- 
ted act  of  all ;" — "  that  it  was  the  act  of  the  whole  people 
of  the  United  Colonies,  exercising  original  inherent  sove- 
reignty, resulting  from  their  right  to  change  the  form  of 
government,"  &c.  But  the  question  is,  in  what  character 
was  it  the  united  act  of  all  ?  It  was  in  their  character  of 
separate  communities,  dependent  on  each  other  only  so  far 
as  common  danger  and  their  own  consent  had  made  them 
so.  It  was  the  act,  indeed,  of  all  America;  but  not  as 
forming  one  nation,  but  as  separate  communities,  all  uni- 
ting in  the  common  object  of  securing  sovereignty  and  in- 
dependence to  each.  How  did  they  vote?  Not  by  indi- 
viduals, as  representing  parts  of  one  whole,  but  by  states, 
as  representing  separate  communities.  If  any  one  state 
had  refused  to  concur  in  the  declaration,  the  vote  of  all 
the  rest  could  not  have  bound  her.  Delaware  could  no 
more  have  been  included  if  she  had  declined  to  assent, 
than  Canada  or  Vermont,  who  did  not  send  delegates  to  the 
body.  It  was  then  the  joint  act,  indeed,  of  the  United  Co- 
lonies, but  it  was  the  joint  act  of  communities  independent 
of  each  other,  and  uniting  in  one  common  measure  for  the 
benefit  of  each.  And  this  seems  to  have  been  the  under- 
standing of  those  who  had  themselves  been  actors  in  the 
stirring  scenes  of  the  revolution.  It  is  distinctly  avowed 
in  the  Federalist,  fp.  213,)  a  work  which  we  all  know  was 
published  but  a  few  years  after  the  close  of  the  war,  and 
came  from  the  hands  of  some  of  our  wisest  and  purest  pa- 

(»/)  The  case  of  Vermont  was  peculiar.  She  had  no  representa- 
tive in  the  congress  which  declared  independence,  though  she 
joined  her  arms  with  ours.  She  declared  her  own  independence 
in  1777. 


90  LECTURES    ON 

triots,  least  liable  to  be  biassed  in  favour  of  the  sovereignty 
of  the  states.     One  of  its  authors,  too,  at  a  future  day, 
from  the  elevated  station  of  the  supreme  court,  distinctly 
1  declared,  "  that  by  the  declaration  of  independence  thir- 

yXA,^  teen  sovereignties  were  considered  as  emerged  from  the 
principles  of  the  revolution;"  so  that  reason  and  authority 
concur  in  rejecting  the  conclusions  of  our  author. 

It  is  to  be  regretted  that  in  a  work  intended  for  the  in- 
struction of  our  youth,  any  passage  should  occur  which  is 
calculated  to  mislead,  or  may  be  regarded  as  a  sophism. 
An  instance,  however,  is  found  in  that  which  we  have  been 
examining.  Our  author  says,  a  declaration  of  indepen- 
dence "  was  an  act  not  competent  to  the  state  governments, 
as  organized  U7ider  their  charters,  to  Adopt."  (p.  198.)  This 
is,  indeed,  undeniable.  Their  charters  did  not  authorize 
them  to  adopt  such  a  measure ;  but  what  was  there  to  pre- 
vent the  "  original  inherent  sovereignty  of  the  people" 
themselves  in  each  state  from  such  adoption.  It  was  the 
right  of  revolution  which  belonged  to  each  of  the  separate 
communities,  as  much  as  to  the  whole,  and  which  each 
might  assert  independent  of  the  others.  It  was  this  right 
of  each,  which,  in  general  congress,  was  asserted  by  the 
whole,  for  the  benefit  of  each,  and  in  that  sense  only  for 
the  benefit  of  the  whole.  With  these  views,  I  look  upon 
tlie  positions  of  judge  Story,  and  the  ipse  dixits  of  Mr. 
Pinckney  and  Mr.  Adams,  on  whose  authority  he  relies,  as 
heretical  and  false,  as  I  am  equally  well  assured  they  are 
dangerous  and  pernicious. 

If,  indeed,  there  could  be  any  doubt  that  thirteen  inde- 
pendent connnunities  sprung  into  existence  with  the  de- 
claration of  independence,  that  doubt  would  be  removed, 
by  the  manner  in  which  the  states  themselves,  looked  upon 
their  position.  Their  view  of  the  matter  is  distinctly  dis- 
closed in  the  articles  of  confederation.  Those  articles 
profess  to  be  between  the  states  of  New  Hampshire,  Mas- 
sachusetts, «Ii:.c.  [naming  each  state  in  the  confederacy.] 
They  profess  to  be  articles  of  confederation,  (a  term  only 
applicable  to  an  association  of  states)  and  ])erpetual  union, 
which  implies  an  anterior  state  in  which  there  was  no  such 
union.  And  such  was  the  fact ;  for  until  that  confedera- 
tion, the  congress  of  the  United  States  constituted  only  a 
revolutionary  government,  not  regularly  organized,  but  ex- 


CONSTITUTIONAL    LAW.  91 

isting  by  tacit  consent  and  acquiescence  of  the  several 
states,  who  coalesced  and  acted  in  concert  from  a  sense  of 
common  danger.  There  was  between  them  no  express 
agreement.  The  confederation  was,  therefore,  intended 
to  bind  together  the  states,  who  were,  till  then,  unbound ; 
and  to  unite  those  who  had  never  before  been  united,  but 
by  the  bond  of  common  safety.  But  in  its  very  formation, 
they  were  careful  to  retain  that  which  to  every  nation  is 
sweet — its  sovereignty  and  independence.  The  style  of 
the  confederacy  was  the  United  States  of  America,  a  name 
which  very  plainly  indicates  the  union  of  political  bodies, 
and  not  the  oneness  of  a  single  republic.  But  to  place  the 
matter  beyond  question,  the  second  section  is  devoted  to 
the  declaration  "  that  each  state  retains  its  sovereignty , 
freedom  and  independence ,  and  every  power,  jurisdiction 
and  right,  which  is  not  by  this  confederation  expressly  de- 
legated to  the  United  States  in  congress  assembled."  They 
not  only  declare,  that  thenceforth  each  state  shall  be  held 
to  be  sovereign  and  independent,  but  they  avow  their  an- 
terior independence  and  sovereignty,  by  the  declaration 
that  they  retained  them.  They  could  not  retain  that  which 
they  had  not  before  enjoyed.  Nay,  more ; — each  state  in 
making  this  declaration,  uno  flatu,  asserts  its  own  rights, 
and  recognizes  the  rights  of  others.  Each,  therefore,  re- 
cognized the  anterior  sovereignty  and  independence  of 
every  other. 

It  is  much  to  be  regretted  that  our  distinguished  author 
has  no  where,  (so  far  as  I  can  discover)  in  the  examination 
of  the  question  of  the  independence  of  the  states,  thought 
fit  to  present  us  with  his  views  of  the  effect  of  these  arti- 
cles in  throwing  light  upon  the  matter.  Had  he  done  so,  we 
may  hope  that  he  would  never  have  arrived  at  the  conclusion 
which  he  gives  in  the  language  of  Mr.  Pinckney,  that  "  the 
separate  independence  and  individual  sovereignty  of  the 
several  states  were  never  thought  of  by  the  enlightened 
hand  of  patriots  who  framed  the  declaration."  Now  it 
happens  that  Hancock,  Adams  and  Gerry  from  Massa'-hu- 
setts,  EUery  from  Rhode  Island,  Sherman,  Huntingdon 
and  Wolcott  from  Connecticut,  Lewis  from  New  York, 
Witherspoon  from  Jersey,  Robert  Morris  from  Pennsylva- 
nia, Thomas  M'Kean  from  Delaware,  Carroll  from  Mary- 
land, the  two  Lees  from  Virginia,  Penn  from  North  Caro- 


92  LECTURES    ON 

lina,  and  Hayward  from  South  Carolina,  who  signed  the 
declaration  of  independence,  were  signers  of  the  confedera- 
tion in  which  the  sovereignty  of  each  was  declared  to  be 
retained;  and  we  have  already  seen  the  opinion  of  judge 
Chase,  another  signer  of  the  declaration,  of  his  views  of 
the  same  interesting  matter.  I  feel  myself,  therefore,  jus- 
tified in  repelling  the  position,  that  "  the  separate  inde- 
pendence and  individual  sovereignty  of  the  several  states, 
were  never  thought  of  by  the  patriot  signers  of  the  decla- 
ration of  independence. 

It  is  also  to  be  regretted  that  the  able  commentator,  in 
citing  judicial  opinions  in  confirmation  of  his  views,  has 
given  us,  among  others,  the  portion  of  judge  Chase's  opi- 
nion in  Ware  v.  Hylton,  3  Dall.  p.  231,  which  is  least 
at  variance  with  his  own  theories,  and  has  omitted  to  pre- 
sent to  the  student  the  strong  remarks  of  that  able  judge 
in  conflict  with  his  own  views.  In  these,  as  we  have  al- 
ready seen,  he  declares,  that  he  considers  the  declaration 
of  independence  (which  he  himself  had  signed,)  "  as  a  de- 
claration NOT  that  the  United  States  jointly,  in  a  collective 
capacity,  were  independent  states,  but  that  each  of  them 
was  a  sovereign  and  independent  state."  It  would,  also, 
have  been  deeply  interesting  to  his  readers  to  have  learned, 
that  Mr.  Marshall  (afterwards  chief  justice),  was  of  counsel 
in  that  cause,  and  strenuously  maintained  the  indepen- 
dence and  sovereignty  of  Virginia  in  1777;  a  position  in 
irreconcilable  conflict  with  the  opinions  of  the  commen- 
tator. 


CONSTITUTIONAL    LAW.  93 


LECTURE  IV. 

From  what  has  been  advanced,  I  hope  the  separate 
sovereignties  of  the  states  upon  the  adoption  of  the  de- 
claration of  independence,  is  sufficiently  apparent.  I 
have  devoted  more  time  to  these  investigations,  because 
the  opposite  opinion  has  been  so  industriously  maintained 
by  an  able  writer,  obviously  with  the  view  of  influencing 
certain  great  political  questions  which  have  arisen  under 
our  constitution.  If,  indeed,  judge  Story  means  nothing 
more  than  that  the  revolutionary  congress,  both  before  and 
after  the  declaration  of  independence,  exercised  large 
powers  by  the  acquiescence  and  consent  of  the  states,  in 
relation  to  national  concerns,  there  could  be  no  difference 
between  us.  The  matter  of  fact  is  beyond  question.  But 
judge  Story  seems  to  be  of  opinion  that  the  states  were  not 
sovereign  during  this  period,  but  that  the  sovereignty  was 
in  the  general  government,  and  that  the  people  were  one. (a) 
Those  on  the  other  hand  who  maintain  the  rights  of  the 
states,  regard  the  sovereignty  as  having  existed  and  con- 
tinued in  the  states,  though  the  exercise  of  certain  powers 
in  relation  to  foreign  concerns  was  permitted  by  them  on 
the  part  of  congress.  But  this  very  permission,  this  ac- 
quiescence and  tacit  consent  so  frequently  spoken  of  by 
the  commentator,  is  itself  decisive  of  state  supremacy. 
Congress  had  no  power  but  by  state  acquiescence.  In 
whom  then  was  the  sovereignty  1  In  those  assuredly  who 
gave  the  authority  to  the  general  government,  and  without 
whose  assent  that  authority  could  not  exist.  Such  is  the 
case  ill  every  league,  where  powers  are  vested  in  a  general 
council,  for  the  conduct  of  the  foreign  affairs  of  the  asso- 
ciated nations.  Such  was  the  case  in  our  own  confedera- 
cy, in  which,  as  we  have  seen,  very  large  powers  wer 
given,  but  the  "  freedom,  sovereignty  and  independence"  of 

(a)  He  quotes  too,  with  apparent  acquiescence,  the  extravagan- 
ces of  Mr.  Dane,  which  it  might  well  have  been  hoped  would  have 
found  no  place  save  in  his  own  pages.  Judge  Story  has  transplant- 
ed them  into  his.     They  are  hereafter  adverted  to. 


94  LECTURES    ON 

the  states  were  scrupulously  reserved,  and  congress  was 
confined  to  the  powers  expressly  granted  by  the  articles  of 
confederation.  From  the  moment  of  the  adoption  of  that 
compact,  at  least,  the  sovereignty  of  the  states  must  be  ad- 
mitted, as  each  expressly  asserted  its  own,  while  it  as  clear- 
ly acknowledged  the  independence  of  others.  They  treated 
too,  with  other  nations,  in  the  character  of  a  confederacy 
of  states,  and  not  in  that  of  a  single  nation.  According- 
ly, in  the  treaty  of  peace,  his  Britannic  majesty  acknow- 
ledges "  the  United  States,  viz  :  New  Hampshire,  Massa- 
chusetts," &C.  [naming  them  each  individually]  "  to  be 
free,  sovereign  and  independent  states  ;  that  he  treats 
with  them  as  such,  and  for  himself  relinquishes,"  &c.  So 
too  the  compact  itself  admits  the  distinct  anterior  sove- 
reignty of  each  state  in  this,  that  though  ratified  by  twelve 
states,  it  was  not  held  binding  on  the  thirteenth  ;  whereas, 
if  as  judge  Story  observes,  "  congress  was  invested  with 
sovereign  power  over  all  the  colonies,  for  the  purpose  of 
preserving  the  rights  and  liberties  of  all,"  (page  202,)  what 
hindered  a  majority  of  that  body  from  binding  every  state 
to  enter  into  the  confederacy,  whether  they  approved  it  or 
not?  What  would  have  hindered  the  abolition  of  the  stJ^te 
governments,  and  the  substitution  of  one  general  govern- 
ment for  all  purposes  whatever.  Yet  such  sweeping  powers 
were  never  dreamed  of,  since  in  fact  the  congress  was  the 
creature  of  the  states,  and  existed  by  their  sufferance.  Its 
powers  were  limited,  and  limited  by  those  who  gave  them. 
Thnj  therefore  were  the  masters  :  tlicij  were  the  sovereigns, 
while  the  general  government  could  exercise  no  authority 
but  that  which  they  had  expressly  given.  Its  act  was  thei}' 
act,  and  derived  its  force  from  them,  and  the  sovereign 
power  which  it  exercised  was//ie?V  sovereign  power.  While 
it  possessed  those  powers,  it  was,  it  may  be  said,  sovereign 
as  to  them,  and  the  states  were  respectively  sovereign  as  to 
all  powers  not  granted.  As  it  has  been  well  expressed  by 
judge  Iredell,  (2  Dall.  435,)  in  relation  to  the  present  con- 
stitution, "Every  state  in  the  Union,  in  every  instance 
where  its  sovereignty  has  not  been  delegated  to  the  United 
States,  I  consider  to  be  as  completely  sovereign  as  the 
United  States  are  in  relation  to  the  powers  surrendered. 
The  United  States  are  sovereign  as  to  all  the  powers  of 
government  actually  surrendered ;  each  state  in  the  Union 


CONSTITUTIONAL    LAW.  95 

is  sovereign  as  to  all  the  powers  reserved  ;  the  part  not  sur- 
rendered must  remain  as  it  was  before." 

In  strictness,  according  to  the  theory  of  our  government, 
the  people  are  the  sovereign.  And  they  have  delegated  a 
part  of  their  power  to  the  general  government,  and  part  to 
the  state  governments,  and  each  exercise  the  respective  por- 
tions of  the  sovereign  powers  allotted  to  them.  Each  may 
in  this  sense  be  said  to  be  sovereign,  though  the  sovereign- 
ty in  fact  still  resides  in  the  people.  In  what  people?  The 
people  of  each  state,  distinct  from  the  other  states,  and  the 
people  of  each  state  accordingly  delegates  the  power.  For 
as  there  is  no  people  of  the  United  States,  considered  ag- 
gregately, the  sovereignty  must  be  in  the  people  of  each 
state.  "  I  conclude,"  says  judge  Iredell,  "  that  every  par- 
ticle of  authority  which  originally  resided  either  in  con- 
gress, or  in  any  branch  of  the  state  governments,  was  de- 
rived from  the  people,  who  were  permanent  inhabitants  of 
each  province  in  the  first  instance,  and  afterwards  became 
citizens  of  each  state;  that  this  authority  was  conveyed  by 
each  body  politic  separately ,  and  not  by  all  the  people  in 
the  several  provinces  or  states,  jointly,  and  of  course  that 
no  authority  could  be  conveyed  to  the  whole,  but  that 
which  previously  was  possessed  by  the  several  parts,"  «Stc. 

We  now  come  to  the  consideration  of  the  condition  of 
the  states  under  the  articles  of  confederation, (6)  and  here 
we  shall  find  that  however  successful  the  commentator 
may  have  been  m  insinuating  doubts  of  their  sovereignty 
before,  every  thing  conspires  with  that  instrument  to  estab- 
lish that  sovereignty  beyond  all  question.  I  shall  present 
the  different  evidences  of  it  as  succinctly  as  possible,  as 
they  are  so  numerous  that  to  expatiate  on  each  would  un- 
necessarily consume  our  time. 

1.  And  first  let  it  be  remarked  that  the  articles  are  de- 
clared to  be  articles  of  confederation ;  a  term  which  in  its 
ordinary  as  well  as  in  its  radical  signification,  implies  a 
league  or  union  between  states,  as  contradistinguished  fror^ 
a  national  government  over  one  people. 

2.  They  are  declared  to  be  articles  of  confederation  he- 
twecn  the  states  of  New  Hampshire,  &c.,  [naming  each,] 
thus  recognizing  each  as  a  state,  and  as  such  capable  of 

(b)  See  the  articles,  1  L.  U.  S.  13. 


96  LECTURES    ON 

contracting  with  other  states,  which  is  one  of  the  highest 
attributes  of  sovereignty. 

3.  They  are  declared  also  to  be  articles  of  perpetual 
union  ;  an  expression  which  strongly  negatives  tlie  favourite 
notion  of  oneness,  since  union  implies  the  connection  of 
those  who  before  were  separate. 

4.  The  act  of  uniting  is  styled  a  confederacy,  and  the 
3d  article  declares  that  "  the  said  states  hereby  severally 
enter  into  a  firm  league  of  friendship  for  common  de- 
fence, &LC.,  binding  themselves  to  assist  each  other,  and 
thus  distinctly  recognizing  their  separateness  and  indepen- 
dence of  each  other. 

5.  The  confederacy  is  styled  "  The  United  States  of 
America,"  still  keeping  in  view  the  fact  of  its  component 
parts  being  different  bodies  politic. 

6.  The  second  article  declares  that  each  state  retains 
its  sovereignty,  freedom  and  independence,  and  all  powers 
not  expressly  granted ;  thus  asserting  anterior  sovereignty 
in  each,  and  conceding  it  to  every  other. 

7.  Various  provisions  shew  that  the  parties  kept  in 
view,  throughout,  the  distinctness  of  their  several  com- 
munities, and  their  attributes  of  sovereignty  ;  thus 

8.  "  The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  between  the  people  of  the  different 
states  in  this  Union,  it  is  provided,  that  the  free  inhabitants 
of  each  shall  be  entitled  to  all  the  privileges  of  citizens  in 
the  several  states;"  a  provision  utterly  unnecessary,  if 
they  formed  but  one  people. 

9.  The  states  are  restricted  from  sending  ambassadors, 
entering  into  treaties,  engaging  in  war,  or  keeping  troops 
or  navies ;  thus  clearly  admitting,  that  but  for  this  restric- 
tion, every  state  would  possess  these  important  attributes 
of  sovereignty. 

10.  In  assenting  to  the  articles  of  confederation,  the 
states  acted  independently  of  each  other,  and  the  legisla- 
tures of  the  several  states,  through  their  delegates,  declared 
their  respective  assents. 

11.  No  state  was  held  bound  which  did  not  expressly 
assent,  and  no  change  was  to  be  made  in  the  articles  at 
any  time  without  the  consent  of  everi/  state. 

12.  The  congress  under  this  confederation  was  com- 
posed of  delegates  not  elected  by  the  people,  but  by  the  le- 
gislatures in  each  state. 


CONSTITUTIONAL    LAW.  97 

13.  Those  delegates  might  be  recalled  by  the  legisla- 
tures, and  were  liable  to  be  instructed  by  them. 

14.  The  ratification  of  the  articles  by  the  states  was  by 
delegates  acting  under  instructions  of  the  state  legislatures. 

15.  And  every  delegate  in  signing  expressly  declared 
that  he  did  so  "  on  the  part  and  behalf  of  the  state"  he 
represented. 

Lastly.  Several  of  the  states  at  first  declared  their  assent 
to  the  articles  which  were  drawn  up  in  1778.  Maryland 
withheld  her  assent  till  1781  ;  a  fact  which  distinctly  nega- 
tives all  notion  of  the  nationality  of  the  act. 

It  is  time  that  I  should  now  lay  before  the  student  judge 
Upshur's  remarks  on  the  subject,  of  which  I  have  been 
treating : 

"  The  examination  of  this  part  of  the  subject  has  pro- 
bably been  already  drawn  out  to  too  great  an  extent ;  but 
it  would  not  be  complete  without  some  notice  of  another 
ground,  upon  which  our  author  rests  his  favourite  idea — 
that  the  people  of  the  colonies  formed  '  one  people'  or  na- 
tion. Even  if  this  unity  was  not  produced  by  the  appoint- 
ment of  the  revolutionary  government,  or  by  the  nature  of 
the  powers  exercised  by  them,  and  acquiesced  in  by  the 
people,  he  thinks  there  can  be  no  doubt  that  this  was  the 
necessary  result  of  the  declaration  of  independence.  In 
order  that  he  may  be  fully  understood  upon  this  point,  I 
will  transcribe  the  entire  passage  relating  to  it : 

"  '  In  the  next  place,  the  colonies  did  not  severally  act 
for  themselves  and  proclaim  their  own  independence.  It 
is  true  that  some  of  the  states  had  previously  formed  inci- 
pient governments  for  themselves ;  but  it  was  done  in  com- 
pliance with  the  recommendations  of  congress.  Virginia, 
on  the  29th  of  June  1776,  by  a  convention  of  delegates, 
declared  '  the  government  of  this  country,  as  formerly  ex- 
ercised under  the  crown  of  Great  Britain,  totally  dissolved,' 
and  proceeded  to  form  a  new  constitution  of  government. 
New  Hampshire  also  formed  a  new  government  in  Decei.  - 
her  1775,  which  was  manifestly  intended  to  be  temporary, 
'  during  (as  they  said)  the  unhappy  and  unnatural  contest 
with  Great  Britain.'  New  Jersey,  too,  established  a  frame 
of  government  on  the  2d  July  1776 ;  but  it  was  expressly 
declared  that  it  should  be  void  upon  a  reconciliation  with 
Great  Britain.  And  South  Carolina,  in  March  1776, 
9 


98  LECTURES    ON 

adopted  a  constitution  of  government;  but  this  was  in 
like  manner  '  established  until  an  accommodation  between 
Great  Britain  and  America  could  be  obtained.'  But  the 
declaration  of  the  independence  of  all  the  colonies  was  the 
united  act  of  all.  It  was  '  a  declaration  by  the  represen- 
tatives of  the  United  States  of  America,  in  congress  as- 
sembled ;' — '  by  the  delegates  appointed  by  the  good  people 
of  the  colonies,'  as,  in  a  prior  declaration  of  rights,  they 
were  called.  It  was  not  an  act  done  by  the  state  govern- 
ments then  organized,  nor  by  persons  chosen  by  them.  It 
was  emphatically  the  act  of  the  whole  people  of  the  Uni- 
ted Colonies,  by  the  instrumentality  ol'  their  representa- 
tives, chosen  for  that,  among  other  purposes.  It  was  an 
act  not  competent  to  the  state  governments,  or  any  of 
them,  as  organized  under  their  charters,  to  adopt.  Those 
charters  neither  contemplated  the  case  nor  provided  for 
it.  It  was  an  act  of  original,  inherent  sovereignty  by  the 
people  themselves,  resulting  from  their  right  to  change  the 
form  of  government,  and  to  institute  a  new  government, 
whenever  necessary  for  their  safety  and  happiness.  So  the 
declaration  of  independence  treats  it.  No  state  had  pre- 
sumed, of  itself,  to  form  a  new  government,  or  provide  for 
the  exigencies  of  the  times,  without  consulting  congress 
on  the  subject;  and  when  they  acted,  it  was  in  pursuance 
of  the  recommendation  of  congress.  It  was,  therefore, 
the  achievement  of  the  whole  for  the  benefit  of  the  whole. 
The  people  of  the  United  Colonies  made  the  United  Colo- 
nies free  and  independent  states,  and  absolved  them  from 
allegiance  to  the  British  crown.  The  declaration  of  inde- 
pendence has,  accordingly,  always  been  treated  as  an  act 
of  paramount  and  sovereign  authority,  complete  and  per- 
fect per  se ;  and  ijjso  J'arto  working  an  entire  dissolution 
of  all  political  connexion  with,  and  allegiance  to.  Great 
Britain.  And  this,  not  merely  as  a  practical  fact,  but  in  a 
legal  and  constitutional  view  of  the  matter  by  courts  of 
justice.' 

"The  first  question  which  this  passage  naturally  sug- 
gests to  the  mind  of  the  reader  is  this  :  if  two  or  more  na- 
tions or  people,  confessedly  separate,  distinct  and  indepen- 
dent, each  having  its  own  peculiar  government,  without 
any  'direct  political  connexion  with  each  other,'  yet  ow- 
ing the  same  allegiance  to  one  common  superior,  should 


CONSTITUTIONAL    LAW.  99 

unite  in  a  declaration  of  rights  which  they  believed  be- 
longed to  all  of  them  alike,  would  that  circumstance  alone 
make  them  '  one  people?'  Stripped  of  the  circumstances 
with  which  the  author  has  surrounded  it,  this  is,  at  last, 
the  only  proposition  involved.  If  Spain,  Naples  and  Hol- 
land, while  they  were  '  dependencies'  of  the  imperial 
crown  of  France,  had  united  in  declaring  that  they  were 
oppressed,  in  the  same  mode  and  degree,  by  the  measures 
of  that  crown,  and  that  they  did,  for  that  reason,  disclaim 
all  allegiance  to  it,  and  assume  the  station  of  '  free  and  in- 
dependent states,'  would  they  thereby  have  become  one 
people  ?  Surely  this  will  not  be  asserted  by  any  one.  We 
should  see,  in  that  act,  nothing  more  than  the  union  of  se- 
veral independent  sovereignties,  for  the  purpose  of  effect- 
ing a  common  object,  which  each  felt  itself  too  weak  to 
effect,  alone.  Nothing  would  be  more  natural,  than  that 
nations  so  situated  should  establish  a  common  military 
power,  a  common  treasury,  and  a  common  agency,  through 
which  to  carry  on  their  intercourse  with  other  powers ;  but 
that  all  this  should  unite  them  together,  so  as  to  form  them 
into  one  nation,  is  a  consequence  not  readily  perceived. 
The  case  here  supposed,  is  precisely  that  of  the  American 
colonies,  if  those  colonies  wpre,  in  point  of  fact,  separate, 
distinct,  and  independent  of  one  another.  If  they  were  so, 
(and  I  think  it  has  been  shewn  that  they  were,)  then  the 
fact  that  they  united  in  the  declaration  of  independence, 
does  not  make  them  '  one  people,'  any  more  than  a  similar 
declaration  would  have  made  Spain,  Naples  and  Holland  one 
people;  if  tliey  were  not  so,  then  they  were  one  people  al- 
ready, and  the  declaration  of  independence  did  not  render 
them  either  more  or  less  identical.  It  is  true,  the  analogy 
here  supposed  does  not  hold  in  every  particular ;  the  rela- 
tions of  the  colonies  to  one  another  were  certainly  closer, 
in  many  respects,  than  those  of  Spain,  Naples  and  Hol- 
land, to  one  another.  But  as  to  all  purposes  involved  in 
the  present  enquiry,  the  analogy  is  perfect.  The  effect  at- 
tributed to  the  declaration  of  independence,  presupposes 
that  the  colonies  were  not  '  one  people'  before ;  an  effect 
which  is  in  no  manner  changed  or  modified  by  any  other 
circumstance  in  their  relation  to  one  another.  That  fact, 
alone,  is  necessary  to  be  enquired  into ;  and  until  that  fact 
is  ascertained,  the  author's  reasoning  as  to  the  effect  of  the 


100  LECTURES    ON 

declaration  of  independence,  in  making  them  'one  peo- 
ple,' does  not  apply.  He  is  obliged,  therefore,  to  aban- 
don the  ground  previously  taken,  to  wit,  that  the  colonies 
were  one  people  before  the  declaration  of  independence. 
And  having  abandoned  it,  he  places  the  colonies,  as  to  this 
question,  upon  the  footing  of  any  other  separate  and  dis- 
tinct nations;  and,  as  to  these,  it  is  quite  evident  that  the 
conclusion  which  he  has  drawn  in  the  case  of  the  colo- 
nies, could  not  be  correct,  unless  it  would  be  equally  cor- 
rect in  the  case  of  Spain,  Naples  and  Holland,  above  sup- 
posed. 

"  The  mere  fact,  then,  that  the  colonies  united  in  the 
declaration  of  independence,  did  not  necessarily  make 
them  one  people.  But  it  may  be  said  that  this  fact  ought, 
at  least,  to  be  received  as  proof  that  they  considered  them- 
selves as  one  people  already.  The  argument  is  fair,  and  I 
freely  let  it  go  for  what  it  is  worth.  The  opinion  of  the 
congress  of  1775,  whatever  it  may  have  been,  and  however 
strongly  expressed,  could  not  possibly  change  the  histori- 
cal facts.  It  depended  upon  those  facts,  alone,  whether 
the  colonies  were  one  people  or  not.  They  might,  by  their 
agreement,  expressed  through  their  agents  in  congress, 
make  themselves  one  people  through  all  time  to  come  ;  but 
their  power,  as  to  this  matter,  could  not  extend  to  the  time 
past.  Indeed,  it  is  contended,  not  only  by  our  author,  but 
by  others,  that  the  colonies  did,  hy  and  in  that  act,  agree 
to  become  *  one  people'  for  the  future.  They  suppose 
that  such  agreement  is  implied,  if  not  expressed,  in  the 
following  passages  :  '  We,  therefore,  the  representatives  of 
the  United  States  of  America,' — '  do,  in  the  name  and  by 
the  authority  of  the  good  people  of  these  colonies,  so- 
lemnly publish  and  declare  that  these  United  Colonies  are, 
and  of  right  ought  to  be,  free  and  independent  states.' 
Let  US  test  the  correctness  of  this  opinion,  by  the  history 
of  the  time,  and  by  the  rules  of  fair  criticism. 

''  The  congress  of  1775,  by  which  independence  was  de- 
clared, was  appointed,  as  has  been  before  shewn,  by  the 
colonies  in  their  separate  and  distinct  capacity,  each  act- 
ing for  itself,  and  not  conjointly  with  any  other.  They 
were  the  representatives,  each  of  his  own  colony,  and  not 
of  any  other ;  each  had  authority  to  act  in  the  name  of 
his  own  colony,  and  not  in  that  of  any  other;  each  colony 


CONSTITUTIONAL    LAW.  101 

gave  its  own  vote  by  its  own  representatives,  and  not  by 
those  of  any  other  colony.  Of  course,  it  was  as  separate 
and  distinct  colonies  that  they  deliberated  on  the  declara- 
tion of  independence.  When,  therefore,  they  declare,  in 
the  adoption  of  that  measure,  that  they  act  as  '  the  repre- 
sentatives of  the  United  States  of  America,'  and  'in  the 
name  and  by  the  authority  of  the  good  people  of  these  co- 
lonies,' they  must  of  course  be  understood  as  speaking  in 
the  character  in  which  they  had  all  along  acted ;  that  is, 
as  the  representatives  of  separate  and  distinct  colonies, 
and  not  as  the  joint  representatives  of  any  one  people.  A 
decisive  proof  of  this,  is  found  in  the  fact,  that  the  colo- 
nies voted  on  the  adoption  of  that  measure  in  their  sepa- 
rate character,  each  giving  one  vote  by  all  its  own  repre- 
sentatives, who  acted  in  strict  obedience  to  specific  instruc- 
tions from  their  respective  colonies,  and  the  members  sign- 
ed the  declaration  in  that  way.  So,  also,  when  they  de- 
clared that  'these  United  Colonies  are,  and  of  right  ought 
to  be,  free  and  independent  states,'  they  meant  only  that 
their  respective  communities,  which  until  then  had  been 
dependent  colonies,  should  thereafter  be  independent  states, 
and  that  the  same  union  which  existed  between  them  as 
colonies,  should  be  continued  between  them  as  states.  The 
measure  under  consideration  looked  only  to  their  relation 
to  the  mother  country,  and  not  to  their  relation  to  one  ano- 
ther ;  and  the  sole  question  before  them  was,  whether  they 
should  continue  in  a  state  of  dependence  on  the  British 
crown,  or  not.  Having  determined  that  they  would  not, 
they  from  that  moment  ceased  to  be  colonies,  and  became 
states  ;  united,  precisely  as  before,  for  the  common  purpose 
of  achieving  their  common  liberty.  The  idea  of  forming 
a  closer  union,  by  the  mere  act  of  declaring  themselves  in- 
dependent, could  scarcely  have  occurred  to  any  one  of 
them.  The  necessity  of  such  a  measure  must  have  been 
apparent  to  all,  and  it  had  long  before  engaged  their  at- 
tention in  a  different  form.  Men,  of  their  wisdom  and 
forecast,  meditating  a  measure  so  necessary  to  their  com- 
mon safety,  would  not  have  left  it  as  a  mere  matter  of  la- 
ference  from  another  measure.  In  point  of  fact,  it  was  al- 
ready before  them,  in  the  form  of  a  distinct  proposition, 
and  had  been  so  ever  since  their  first  meeting  in  May 
9* 


103  LECTURES    ON 

1775. (c)  It  is  impossible  to  suppose,  therefore,  in  common 
justice  to  tlie  sagacity  of  congress,  tliat  they  meant  any 
thing  more  by  the  declaration  of  independence,  than  sim- 
ply to  sever  the  tie  which  had  theretofore  bound  them  to 
England,  and  to  assert  the  rights  of  the  separate  and  dis- 
tinct colonies,  as  separate  and  independent  states ;  parti- 
cularly as  the  language  which  they  use  is  fairly  suscepti- 
ble of  this  construction.  The  instrument  itself  is  enti- 
tled, '  the  unanimous  declaration  of  the  thirteen  United 
States  of  America ;'  of  states,  separate  and  distinct  bo- 
dies politic,  and  not  of  '  one  people'  or  nation,  composed 
of  all  of  them  together ;  '  united,'  as  independent  states 
may  be,  by  compact  or  agreement,  and  not  amalgamated, 
as  they  would  be,  if  they  formed  one  nation  or  body  po- 
litic. 


(c)  A  document  which  I  have  not  met  with  elsewhere,  hut  which 
may  be  found  in  the  Appendix  to  professor  Tucker's  elaborate  and 
instructive  Life  of  Jefferson,  affords  important  evidence  upon  this 
point.  As  early  as  May  1775,  the  plan  of  a  "  confederation  and 
perpetual  union"  among  the  colonies,  was  prepared  and  proposed 
for  adoption.  It  was  not  in  fact  adopted,  but  its  provisions  shew, 
in  the  strongest  manner,  in  what  light  the  colonies  regarded  their 
relation  to  one  another.  The  proposed  union  was  called  "  a  firm 
league  of  friendship  ;"  each  colony  reserved  to  itself  "  as  much  as 
it  might  think  proper  of  its  own  present  laws,  customs,  rights,  pri- 
vileges and  peculiar  jurisdictions,  within  its  own  limits  ;  and  may 
amend  its  own  constitution  as  may  seem  best  to  its  own  assembly 
or  convention;"  the  external  relations  of  the  colonies  were  to  be 
managed  b}'  their  general  government  alone,  and  all  amendments 
of  their  "  constitution,"  as  they  termed  it,  were  to  be  proposed  by 
congress  and  "approved  by  a  majority  of  the  colony  assemblies." 
It  can  scarcely  be  contended  that  this  "  league  of  friendship,"  this 
"  confederation  and  perpetual  union,"  would,  if  it  had  been  adopt- 
ed, have  rendered  the  people  of  the  several  colonies  less  identical 
than  they  were  before.  If,  in  tlieir  own  opinion,  they  were  "one 
people"  already,  no  league  or  confederation  was  necessary,  and  no 
one  would  have  thought  of  proposing  it.  The  very  fact,  therefore, 
that  it  was  pro])osed  as  a  necessary  measure  "  for  their  common  de- 
fence against  their  enemies,  for  the  security  of  their  liberties  and 
their  properties,  the  safety  of  their  persons  and  families,  and  their 
mutual  and  general  welfare,"  proves  that  they  did  not  consider 
themselves  as  already  "one  people,"  in  any  sense  or  to  any  extent 
which  would  enable  them  to  effect  those  important  objects. 
'  This  proposition  was  depending  and  undetermined  at  the  time  of 
the  declaration  of  independence. 


CONSTITUTIONAL    LAW.  103 

"  Is  it  true  then,  as  the  author  supposes,  that  the  '  colo- 
nies did  not  severally  act  for  themselves,  and  proclaim 
their  own  independence  1  It  is  true  that  they  acted  to- 
gether ;  but  is  it  not  equally  true  that  each  acted  for  itself 
alone,  without  pretending  to  any  right  or  authority  to  bind 
any  other  ?  Their  declaration  was  simply  their  jo»ii  ex- 
pression of  their  separate  wills ;  each  expressing  its  own 
will,  and  not  that  of  any  other  ;  each  bound  by  its  own  act, 
and  not  responsible  for  the  act  of  any  other.  If  the  colo- 
nies had  severally  declared  their  independence  through 
their  own  legislatures,  and  had  afterwards  agreed  to  unite 
their  forces  together,  to  make  a  common  cause  of  their 
contest,  and  to  submit  their  common  interests  to  the  ma- 
nagement of  a  common  council  chosen  by  themselves, 
wherein  would  their  situation  have  been  different  ?  And 
is  it  true  that  this  declaration  of  independence  '  was  not  an 
act  done  by  the  state  governments  then  organized,  nor  by 
persons  chosen  by  them  V  that  '  it  was  emphatically  the  act 
of  the  whole  people  of  the  United  Colonies,  by  the  instru- 
mentality of  their  representatives  chosen  for  that  among 
other  purposes?'  What  representatives  were  those  that 
were  chosen  by  '  the  people  of  the  United  Colonies  ?  When 
and  how  were  they  chosen  ?  Those  who  declared  the  co- 
lonies independent  were  chosen  more  than  a  year  before 
that  event ;  they  were  chosen  by  the  colonies  separately, 
and,  as  has  already  been  shewn,  through  the  instrumen- 
tality of  their  own  '  governments  then  organized ;'  they 
were  chosen,  not  for  the  '  purpose'  of  declaring  the  colo- 
nies independent,  but  of  protecting  them  against  oppres- 
sion, and  bringing  about  a  reconciliation  with  the  parent 
country,  upon  fair  terms,  if  possible.  (Jefferson's  Notes, 
1st  ed.  128,  129.)  If  there  were  any  other  representa- 
tives than  these  concerned  in  the  declaration  of  indepen- 
dence, if  that  act  was  performed  by  representatives  chosen 
by  '  the  whole  people  of  the  colonies,'  for  that  or  any 
other  purpose,  if  any  such  representatives  could  possibly 
have  been  chosen  by  the  colonies  as  then  organized,  no 
historical  record,  that  has  yet  met  my  view,  contains  oje 
syllable  of  the  matter. 

"  The  author  seems  to  attach  but  little  importance  to 
the  fact,  that  several  of  the  colonies  had  established  sepa- 
rate governments  for  themselves,  prior  to  the  declaration 


104  LECTURES    ON 

of  independence.  He  regards  this  as  of  little  consequence  ; 
because  he  thinks  that  the  colonies  so  acted  only  in  pur- 
suance of  the  recommendation  of  congress,  and  would 
not  have  'presumed'  to  doit,  'without  consulting  con- 
gress upon  the  subject;'  and  because  the  governments  so 
established  were,  for  the  most  part,  designed  to  be  tempo- 
rary, and  to  continue  only  during  the  contest  with  England. 
Such  recommendation  was  given,  in  express  terms,  to  New 
Hampshire  and  South  Carolina,  in  November  1775,  and 
to  Virginia,  in  December  of  that  year;  and  on  the  10th 
May  1770,  '  it  was  resolved  to  recommend  to  the  respective 
assemblies  and  conventions  of  the  United  Colonies,  where 
no  government  sufficient  to  the  exigencies  of  their  affiiirs 
had  been  established,  to  adopt  such  a  government  as  should, 
in  the  opinion  of  the  representatives  of  the  people,  best 
conduce  to  the  happiness  and  safety  of  their  constituents 
in  particular,  and  of  America  in  general.'  The  preamble 
to  this  resolution  was  not  adopted  till  the  15th  May.  (1  El- 
liott's Debates,  80,  83.)  It  is  evident,  from  the  language 
here  employed,  that  congress  claimed  no  power  over  the 
colonies  as  to  this  matter,  and  no  right  to  influence  or 
control  them  in  the  exercise  of  the  important  function  of 
forming  their  own  governments.  It  recommended  only ; 
and,  contemplating  the  colonies  as  separate  and  distinct, 
referred  it  to  the  assembly  or  convention  of  each,  to  es- 
tablish any  form  of  government  which  might  be  acceptable 
to  its  own  people.  Of  what  consequence  was  it,  whether 
the  colonies  acted  upon  the  recommendation  and  advice  of 
others,  or  merely  upon  their  own  will  and  counsels?  With 
whatever  motive  the  act  was  performed,  it  was  one  of  su- 
preme and  sovereign  power,  and  such  as  could  not  have 
been  performed  except  by  a  sovereign  people.  And 
whether  the  government  so  established  was  intended  to 
last  for  ever,  or  only  for  a  limited  time,  did  not  affect  its 
character  as  an  act  of  sovereign  power.  In  point  of  fact, 
then,  the  colonies  which  established  such  governments  did, 
by  that  very  act,  assert  their  sovereignty  and  independence. 
They  had  no  power,  under  their  charters,  to  change  their 
governments.  They  could  do  so  only  by  setting  their 
charters  aside,  and  acting  upon  their  inherent,  sovereign 
right:  and  this  was  revolution.  In  effect,  therefore,  many 
of  the  colonies  had  declared  their  independence  prior  to 


CONSTITUTIONAL    LAW.  105 

the  4th  July,  1776;  they  had  commenced  the  revolution, 
and  were  considered  by  England  as  in  a  state  of  rebellion. 
Of  Virginia  this  is  emphatically  true.  Her  declaration  of 
rights  was  made  on  the  12th  of  June  1776;  and  her  con- 
stitution was  adopted  on  the  29th  of  the  same  month. 
This  constitution  continued  until  1829.  Her  subsequent 
declaration  of  independence,  on  the  4th  of  July,  in  com- 
mon with  the  other  colonies,  was  but  a  more  public,  though 
not  a  more  solemn  affirmation  of  what  she  had  previously 
done ;  a  pledge  to  the  whole  world,  that  what  she  had  re- 
solved on  in  her  separate  character,  she  would  unite  with  the 
other  colonies  in  performing.  She  could  not  declare  her- 
self free  and  independent  more  distinctly,  in  that  form, 
than  she  had  already  done,  by  asserting  her  sovereign  and 
irresponsible  power,  in  throwing  off  her  former  govern- 
ment, and  establishing  a  new  one  for  herself  (c?) 

(d)  In  point  of  fact,  Virginia  declared  her  independence  on  the 
15^^  of  May  1776.  The  following  beautiful  allusion  to  that  scene 
is  extracted  from  an  address  delivered  by  judge  Beverly  Tucker, 
of  William  and  Mary  college,  before  the  Petersburg  lyceum  on  the 
15th  May  1839  : 

"  That  spectacle,  on  this  day  sixty-three  years,  Virginia  exhi- 
bited to  the  world;  and  the  memory  of  that  majestic  scene  it  is 
now  my  task  to  rescue  from  oblivion.  It  was  on  that  day  that  she 
renounced  her  colonial  dependence  on  Great  Britain,  and  separa- 
ted herself  forever  from  that  kingdom.  Then  it  was  that,  bursting 
the  manacles  of  a  foreign  tyranny,  she,  in  the  same  moment,  im- 
posed upon  herself  the  salutary  restraints  of  law  and  order.  In 
that  moment  she  commenced  the  work  of  forming  a  government, 
complete  within  itself;  and  having  perfected  that  work,  she,  on 
the  29th  of  June  in  the  same  year,  performed  the  highest  function 
of  independent  sovereignty,  by  adopting,  ordaining  and  establish- 
ing the  constitution  under  which  all  of  us  were  born.  Then  it  was 
that,  sufficient  to  herself  for  all  the  purposes  of  government,  she 
prescribed  that  oath  of  fealty  and  allegiance  to  her  sole  and  sepa- 
rate sovereignty,  which  all  of  us,  who  have  held  any  office  under 
her  authority,  have  solemnly  called  upon  the  Searcher  of  hearts  to 
witness  and  record.  In  that  hour,  gentlemen,  it  could  not  be  cer- 
tainly known,  that  the  other  colonies  would  take  the  same  decisive 
step.  It  was,  indeed,  expected.  In  the  same  breath  in  which  she 
had  declared  her  own  independence,  Virginia  had  advised  it.  Phe 
had  instructed  her  delegates  in  the  general  congress  to  urge  it; 
^  and  it  was  by  the  voice  of  one  of  her  sons,  whose  name  will  ever 
proudly  live  in  her  history,  that  the  word  of  power  was  spoken,  at 
which  the  chain  that  bound  the  colonies  to  the  parent  kingdom  fell 
asunder,  'as  flax  that  severs  at  the  touch  of  fire.'  But  even  then, 
and  while  the  terms  of  the  general  declaration  of  independence 


106  LECTURES    ON 

"  There  is  yet  another  view  of  this  subject,  which  can- 
not be  properly  omitted.  It  has  already  been  shewn  that, 
prior  to  the  revolution,  the  colonies  were  separate  and  dis- 

were  yet  unsettled,  hers  had  already  gone  forth.  The  voice  of  her 
defiance  was  already  ringing  in  the  tyrant's  ears ;  hers  was  the  cry 
that  summoned  him  to  the  strife;  hers  was  the  shout  tliat  invited 
his  vengeance  :  '  .Vc  .'  me!  Jidsuvi  qui  feci ;  in  vie,  convertite  fer- 
rum.' " 

This  beautiful  address,  abounding  in  patriotic  sentiments,  and 
sound  political  doctrines,  clothed  in  the  richest  language,  ought  to 
be  in  the  hands  of  every  citizen,  and  particularly  of  those  of  Vir- 
ginia. The  following  extract  from  the  journals  of  the  convention, 
containing  the  history  of  this  interesting  event,  cannot  fail  to  be 
acceptable  to  every  American  reader: 

'■'^Wednesday,  May  loth,  1776. 

"The  convention,  then,  according  to  the  order  of  the  day,  re- 
solved itself  into  a  committee  on  the  state  of  the  colony,  and,  after 
some  time  spent  therein,  Mr.  President  resumed  the  chair,  and  Mr. 
Cary  reported  that  the  committee  had,  according  to  order,  had  un- 
der their  consideration  the  state  of  the  colony,  and  had  come  to  the 
following  resolutions  thereupon  ;  which  he  read  in  his  place,  and  af- 
terwards delivered  in  at  the  clerk's  table,  where  the  same  were 
again  twice  read,  and  unanimously  agreed  to ;  one  hundred  and 
twelve  members  being  present. 

"  For  as  much  as  all  the  endeavours  of  the  United  Colonies,  by 
the  most  decent  repreeentations  and  petitions  to  the  kinjj  and  par- 
liament of  Great  Britain,  to  restore  peace  and  security  to  America 
under  tiie  British  government,  and  a  reunion  with  that  people,  up- 
on just  and  liberal  terms,  instead  of  a  redress  of  grievances,  have 
produced,  from  an  imperious  and  vindictive  administration,  in- 
creased insult,  oppression,  and  a  vigorous  attempt  to  effect  our 
total  destruction.  By  a  late  act,  all  these  colonies  are  declared  to 
be  in  rebellion,  and  out  of  the  protection  of  the  British  crown, 
our  properties  subjected  to  confiscation,  our  people,  when  cap- 
tivated, compelled  to  join  in  the  plunder  and  murder  of  their  re- 
lations and  countrymen,  and  all  former  rapine  and  oppression  of 
Americans  declared  legal  and  just.  Fleets  and  armies  are  raised, 
and  the  aid  of  foreign  troops  engaged  to  assist  these  destructive 
purposes.  The  king's  representative  in  this  colony  hath  not  only 
withheld  all  the  powers  of  government  from  operating  for  our 
safety,  but,  having  retired  on  board  an  armed  ship,  is  carrying  on 
a  piratical  and  savage  war  against  us  ;  tempting  our  slaves  by  every 
artifice  to  resort  to  him,  and  training  and  employing  them  against 
their  masters. 

"  In  this  state  of  extreme  danger,  we  have  no  alternative  left, 
but  an  abject  submission  to  the  will  of  those  overbearing  tyrants, 
or  a  total  separation  from  the  crown  and  government  of  Great  Bri- 
tain, uniting  and  exerting  the  strength  of  all  America  for  defence. 


CONSTITUTIONAL    LAW.  107 

tinct,  and  were  not,  in  any  political  sense,  or  for  any  pur- 
pose of  government,  '  one  people.'  The  sovereignty  over 
them  was  in  the  British  crown ;  but  that  sovereignty  was 
not  jointly  over  all,  but  separately  over  eaeh,  and  might 
have  been  abandoned  as  to  some,  and  retained  as  to  others. 
The  declaration  of  independence  broke  this  connexion. 
By  that  act,  and  not  by  the  subsequent  recognition  of  their 
independence,  the  colonies  became  free  states.  What  then 
became  of  the  sovereignty  of  which  we  speak?  It  could 
not  be  in  abeyance ;  the  moment  it  was  lost  by  the  British 
crown  it  must  have  vested  somewhere  else.  Doubtless  it 
vested  in  the  states  themselves.  But  as  they  were  sepa- 
rate and  distinct  as  colonies,   the   sovereignty  over    one 

and  forming  alliances  with  foreign  powers  for  commerce  and  aid 
in  war.  Wherefore,  appealing  to  the  Searcher  of  all  hearts  for  the 
sincerity  of  former  declarations,  expressing  our  desire  to  preserve 
our  connexion  with  that  nation,  and  that  we  are  driven  from  that 
inclination  by  their  wicked  councils,  and  the  eternal  laws  of  self- 
preservation  ;  resolved  unanimously,  that  the  delegates  appointed 
to  represent  this  colony  in  general  congress,  be  instructed  to  pro- 
pose to  that  respectable  body,  to  declare  the  United  Colonies  free 
and  independent  states,  absolved  from  all  allegiance  to,  or  depen- 
dence upon,  the  crown  or  parliament  of  Great  Britain;  and  that 
they  give  the  assent  of  this  colony  to  that  declaration,  and  to  what- 
ever measures  may  be  thought  proper  and  necessary  by  the  con- 
gress, for  forming  foreign  alliances,  and  a  confederation  of  the  co- 
lonies, at  such  time  and  in  such  manner  as  to  them  may  seem  best. 
Provided,  that  the  power  of  forming  government  for,  and  the  regu- 
lations of  the  internal  concerns  of  each  colony,  be  left  to  the  re- 
spective colonial  legislatures. 

"  Resolved,  unanimously,  that  a  committee  be  appointed  to  pre- 
pare a  declaration  of  rights,  and  such  a  plan  of  government,  as 
will  be  most  likely  to  maintain  peace  and  order  in  this  colony,  and 
secure  substantial  and  equal  liberty  to  the  people. 

"  And  a  committee  was  appointed  of  the  following  gentlemen  : 
Mr.  Archibald  Gary,  Mr.  Meriwether  Smith,  Mr.  Mercer,  Mr. 
Henry  Lee,  Mr.  Treasurer,  Mr.  Henry,  Mr.  Dandridge,  Mr.  Ed- 
mund Randolph,  Mr.  Gilmer,  Mr.  Bland,  Mr.  Digges,  Mr.  Car- 
rington,  Mr.  Thomas  Ludwell  Lee,  Mr.  Cabell,  Mr.  Jones,  Mr. 
Blair,  Mr.  Fleming,  Mr.  Tazewell,  Mr.  Richard  Gary,  Mr.  BuUit, 
Mr.  Watts,  Mr.  Banister,  Mr.  Page,  Mr.  Starke,  Mr.  David  Mason, 
Mr.  Adams,  Mr.  Read  and  Mr.  Thomas  Lewis." 

It  is  impossible  to  contemplate  this  proceeding  on  the  part  of 
Viro-inia,  without  being  convinced  that  she  acted  from  her  own 
free  and  sovereign  will;  and  tliat  she,  at  least,  did  "presume"  to 
establish  a  government  for  herself,  without  the  least  regard  to  the 
recommendation  or  the  pleasure  of  congress. 


108 


LECTURES    ON 


could  not  vest,  either  in  whole  or  in  part,  in  any  other. 
Each  took  to  itself  that  sovereignty  which  applied  to  itself, 
and  for  which  alone  it  had  contended  with  the  British 
crown,  to  wit,  the  sovereignty  over  itself  Thus  each 
colony  became  a  free  and  sovereign  state.  This  is  the 
character  which  they  claim  in  the  very  terms  of  the 
declaration  of  independence  ;  in  this  character  they  formed 
the  colonial  government,  and  in  this  character  that  go- 
vernment always  regarded  them.  Indeed,  even  in  the 
earlier  treaties  with  foreign  powers,  the  distinct  sove- 
reignty of  the  states  is  carefully  recognized.  Thus, 
the  treaty  of  alliance  with  France,  in  1778,  is  made  be- 
tween '  the  most  Christian  king  and  the  United  States  of 
North  America,  to  wit :  New  Hampshire,  Massachusetts 
Bay,  Rhode  Island,  Connecticut,'  &.c.,  enumerating  them 
all  by  name.  The  same  form  is  observed  in  the  treaty  of 
amity  and  commerce  with  the  states  general  of  the  United 
Netherlands,  in  1782,  and  in  the  treaty  with  Sweden,  in 
1783.  In  the  convention  with  the  Netherlands,  in  1782, 
concerning  recaptured  vessels,  the  names  of  the  states  are 
not  recited,  but  '  the  United  States  of  America'  is  the  style 
adopted  ;  and  so  also  in  some  others.  This  circumstance 
shews  that  the  two  forms  of  expression  were  considered 
equipollent;  and  that  foreign  nations,  in  treating  with  the 
revolutionary  government,  considered  that  they  treated  with 
distinct  sovereignties,  through  their  common  agent,  and  not 
with  a  new  nation,  composed  of  all  those  sovereign  coun- 
tries together.  It  is  true,  they  treated  with  them  jointly, 
and  not  severally ;  they  considered  them  all  bound  to  the 
observance  of  their  stipulations,  and  they  believed  that  the 
common  authority,  which  was  established  between  and 
among  them,  was  sufficient  to  secure  that  object.  The 
provisional  articles  with  Great  Britain,  in  1782,  by  which 
our  independence  was  acknowledged,  proceed  upon  the 
same  idea.  The  first  article  declares,  that  '  His  Britannic 
Majesty  acknowledges  the  said  United  States,  to  wit:  New 
Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Provi- 
dence Plantations,  Connecticut,  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, South  Carolina  and  Georgia,  to  be  free,  sovereign  and 
independent  states ;  that  he  treats  with  them  as  such,'  &c. 
Thus  the  very  act,  by  which  their  former  sovereign  re- 


CONSTITUTIONAL    LAAV.  109 

leases  them  from  their  allegiance  to  him,  confirms  to  each 
one  by  name  the  sovereignty  within  its  own  limits,  and  ac- 
knowledges it  to  be  a  '  free,  sovereign  and  independent 
state;'  iinitcd,  indeed,  with  all  the  others,  but  not  as  form- 
ing with  them  any  new  and  separate  nation.  The  lan- 
guage employed  is  not  suited  to  convey  any  other  idea.  If 
it  had  been  in  the  contemplation  of  the  parties,  that  the 
states  had  merged  themselves  into  a  single  nation,  some- 
thing like  the  following  formula  would  naturally  have  sug- 
gested itself  as  proper.  '  His  Britannic  Majesty  acknow- 
ledges that  New  Hampshire,  Massachusetts  Bay,  &c., 
former  colonies  of  Great  Britain,  and  now  united  together 
as  one  people,  are  a  free,  sovereign  and  independent  state,' 
&/C.  The  difference  between  the  two  forms  of  expression, 
and  the  strict  adaptation  of  each  to  the  state  of  things 
which  it  contemplates,  will  be  apparent  to  every  reader. 

"  It  requires  strong  and  plain  proof  to  authorize  us  to 
say,  that  a  nation  once  sovereign  has  ceased  to  be  so.  And 
yet  our  author  requires  us  to  believe  this  of  the  colonies, 
although  he  acknowledges  that  he  cannot  tell,  with  any 
degree  of  confidence  or  precision,  when,  how,  or  to  what 
extent  the  sovereignty,  which  they  acquired  by  declaring 
their  independence,  was  surrendered.  According  to  him, 
the  colonies  are  to  be  presumed  to  have  yielded  this  sove- 
reignty to  a  government  established  by  themselves  for  a 
special  and  temporary  purpose,  which  existed  only  at  their 
will,  and  by  their  aid  and  support ;  whose  powers  were 
wholly  undefined,  and,  for  the  most  part,  exercised  by 
usurpation  on  its  part,  and  legitimated  only  by  the  acqui- 
escence of  those  who  appointed  it;  whose  authority  was 
without  any  adequate  sanction  which  it  could  itself  apply, 
and  which,  as  to  all  the  important  functions  of  sovereignty, 
was  a  mere  name — the  shadow  of  power  without  its  sub- 
stance !  If  the  fact  was  really  so,  I  venture  to  affirm  that 
the  history  of  the  world  affords  no  similar  instance  of  folly 
and  infatuation. 

"  But,  whatever  may  have  been  the  condition  of  the  co- 
lonies prior  to  1781,  there  is  no  room  for  doubt  on  the 
subject,  after  the  final  ratification  of  the  articles  of  con- 
federation in  that  year.  Those  articles  declare  that  'each 
state  retains  its  sovereignty,  freedom  and  independence, 
and  every  power,  jurisdiction  and  right,  which  is  not,  by 
10 


110  LECTURES    ON 

this  confederation,  expressly  delegated  to  the  United  States, 
in  congress  assembled.'  The  obvious  construction  of  tliis 
clause  requires  that  we  should  apply  these  latter  words, 
only  to  '  powers,  jurisdiction  and  rights ;'  some  of  which, 
as  enjoyed  by  the  states  under  the  previous  government, 
were  clearly  surrendered  by  the  articles  of  confederation. 
But  their  entire  sovereignty,  their  entire  freedom,  and  their 
entire  independence,  are  reserved,  for  these  are  not  partible. 
Indeed,  this  is  clear  enough,  from  the  provisions  of  that  in- 
strument, which,  throughout,  contemplate  the  states  as 
free,  sovereign  and  independent.  It  is  singular,  too,  that 
it  should  escape  the  observation  of  any  one,  that  the  very 
fact  of  adopting  those  articles,  and  the  course  pursued  in 
doing  so,  attest,  with  equal  clearness  and  strength,  the 
previous  sovereignty  and  independence  of  the  states.  What 
had  the  states  in  their  separate  character  to  do  with  that 
act,  if  they  formed  altogether  '  one  people  V  And  yet  the 
states,  and  the  states  alone,  performed  it,  each  acting  for 
itself,  and  binding  itself.  The  articles  were  confirmed  by 
ten  states,  as  early  as  1778,  by  another  in  1779,  and  by 
another  in  1780;  and  yet  they  were  not  obligatory  until 
Maryland  acceded  to  them,  1781.  Nothing  less  than  the 
ratification  of  them  by  all  the  states,  each  acting  separately 
for  itself,  was  deemed  sufficient  to  give  them  any  binding 
force  or  authority. 

"  There  is  much  force  and  meaning  in  the  word  '  re- 
tains,' as  it  occurs  in  the  clause  above  quoted.  Nothing 
can  properly  be  said  to  be  retained,  which  was  not  possessed 
before ;  and,  of  course,  the  states  possessed  before  '  sove- 
reignty, freedom  and  independence.'  These  they  retained 
without  any  qualification,  or  limitation,  and  they  also  re- 
tained every  '  power,  jurisdiction  and  right,'  which  they  did 
not  then  cxprcsshj  surrender. 

"  If  these  views  of  the  subject  be  not  wholly  deceptive, 
our  author  has  hazarded,  without  due  caution,  the  opinion 
that  the  colonies  formed  '  one  people,'  either  before  or  af- 
ter the  declaration  of  independence  ;  and  that  they  are  not 
to  be  regarded  as  sovereign  states,  after  that  event.  For 
myself,  I  profess  my  utter  inability  to  perceive,  in  their  con- 
dition, any  nearer  approach  to  '  political  personality  or  in- 
dividuality,' than  may  be  found  in  a  mere  league  or  con- 
federation between  sovereign  and  independent  states ;  and 
a  very  loose  confederation  theirs  undoubtedly  was." 


CONSTITUTIONAL    LAW.  Ill 


LECTURE  V. 

Before  I  proceed  to  any  examination  of  the  present  con- 
stitution, which  was  the  next  step  in  the  political  progress 
of  the  United  States,  it  may  not  be  unprofitable^  to  look 
back  to  the  confederation,  and  take  a  rapid  view  of  the 
causes  which  led  to  the  adoption  of  another  form  of  go- 
vernment. 

Whatever  may  be  the  truth,  in  a  speculative  point  of 
view,  as  to  the  American  colonies  having  constituted  one 
people,  history  leaves  us  no  doubt,  that  long  anterior  to 
the  revolution,  efforts  had  been  made  in  vain  for  the  for- 
mation of  associations  among  them,  for  their  mutual  sup- 
port and  protection.  They  are  said  to  have  been  jealous 
of  each  other's  prosperity,  and  divided  by  policy,  institu- 
tions, prejudice  and  manners ;(«)  and  even  after  the  com- 
mencement of  the  revolution,  when  the  pressure  of  Bri- 
tish power  made  some  league  or  association  essential,  they 
seem  to  have  felt  that  it  was  the  true  path  of  safety,  to  re- 
tain all  sovereign  powers  in  their  own  hands,  except  those, 
which  imperious  necessity  demanded  should  be  placed  in 
the  hands  of  the  irregular  revolutionary  government.  From 
the  batttle  of  Lexington  in  1775,  to  the  month  of  August 
1778,  a  war  with  one  of  the  most  powerful  nations  of  the 
globe,  was  waged  by  a  congress  composed  of  delegates 
from  the  states,  appointed  either  by  state  legislatures,  or 
conventions  ;  and  deriving  its  powers  partly  from  the  com- 
missions of  its  members,  but  mainly  from  the  necessities 
of  the  time. (6)  The  desperate  struggle  at  length  led  to 
the  projection  of  a  league  or  confederation,  which  was  not 
however  ratified  by  all  the  states  till  1781.  By  the  articles 
of  confederation,  congress  was  invested  with  the  powers  of 
peace  and  war,  of  sending  and  receiving  ambassadors,  of 
making  treaties  with  certain  restrictions,  of  coining  ^nd 
borrowing  money,  of  emitting  bills  of  credit,  of  ascertain- 
ing the  necessary  sums,  and  troops  and  ships  required  for 

(a)  1  Kent.  205. 
(6)3  Dall.  91. 


112  LECTURES    ON 

the  public  service,  and  of  appropriating  money ;  together 
with  some  other  j)o\vers  of  minor  cliaracter.  But  the  most 
important  of  those  above  mentioned,  were  unaccompanied 
by  any  power  to  carry  them  into  execution.  Most  of  the 
granted  powers,  required  for  their  exercise,  the  assent  of 
nine  states;  and  when  tliey  were  exercised,  they  depended 
altogether  upon  the  faith  and  punctuality  of  the  states,  in 
complying  with  requisitions.  There  was  no  power  to  raise 
a  revenue  or  lay  a  tax;  for  the  authority  as  to  this  matter, 
only  extended  to  "  ascertaining"  the  sums  that  each  state 
was  to  pay.  They  could  enforce  no  law,  secure  no  right, 
and  though  entitled  to  send  ambassadors,  they  had  no  au- 
thority to  raise  the  means  of  paying  them.  They  could 
contract  debts,  but  had  no  means  of  discharging  them. 
They  could  pledge  the  public  faith,  but  could  not  redeem 
it.  They  could  make  treaties,  but  not  enforce  them,  and 
every  power  which  did  not  execute  itself,  might  be  tram- 
pled upon  with  impunity.  In  short,  in  the  language  of  ge- 
neral Washington,  "  the  confederation  was  a  shadow  with- 
out the  substance;"  congress  could  declare  every  thing, 
but  do  nothing  ;  borrow  money,  but  not  repay  a  dollar  ;  coin 
money  without  the  ability  of  purchasing  bullion,  and  make 
requisitions  which  were  not  complied  with,  or  very  une- 
qually, if  at  all.  It  has  been  justly  observed, (c)  "  that  a 
government  authorized  to  declare  war,  but  relying  on  in- 
dependent states  for  the  means  of  prosecuting  it,  capable 
of  contracting  debts,  and  of  pledging  the  public  faith  for 
their  payment,  but  depending  on  thirteen  distinct  sove- 
reignties for  the  preservation  of  that  faith,  could  only  be 
rescued  from  ignominy  and  contempt  by  finding  those  so- 
vereignties administered  by  men  exempt  from  the  passions 
incident  to  human  nature!"  A  hopeless  expectation  sure- 
ly !  and  experience  soon  demonstrated(r/)  that  the  great 
and  radical  vice  in  the  construction  of  the  confederation, 
was  in  the  principle  of  legislation  for  states  and  govern- 
ments in  their  corporate  or  collective  capacities,  as  contra- 
distinguished from  the  individuals  of  whom  they  consist. 
A  consequence  of  this  was  the  want  of  power  in  congress 
to  give  a  sanction  to  its  laws.     They  had  no  power  to  ex- 

(c)  5  Mars.  Life  of  Wash.  31. 
\d)  See  tlie  Fed.  No.  15. 


CONSTITUTIONAL    LAW.  113 

act  obedience  or  to  punish  infraction,  for  they  had  no  btc- 
press  authority  to  exercise  force,  and  they  had  no  power 
except  what  loas  expressly  given.  Hence  when  they  made 
requisitions,  it  depended  upon  the  good  will  or  the  energy 
of  the  state  legislatures,  whether  they  complied  at  all ;  and 
as  congress  had  no  power  to  lay  or  levy  taxes,  or  to  raise 
the  revenues  necessary  for  the  ordinary  expenses  of  the 
government,  a  noncompliance  by  the  states  left  empty  the 
treasury  of  the  Union.  Thus  it  appears,  that  the  requisi- 
tions for  the  payment  of  the  interest  on  the  domestic  debt 
from  1782  to  178G,  amounted  to  more  than  six  millions, 
and  up  to  March  1787,  only  one  million  was  paid  :  and 
from  November  1784,  to  January  1786,  only  483,000  dol- 
lars had  been  paid  into  the  national  treasury. 

Another  and  most  important  defect  of  the  confederation, 
was  the  want  of  power  in  congress  to  regulate  foreign  and 
domestic  commerce;  thus  making  no  provision  against 
one  of  the  most  fruitful  sources  of  dissention  between  the 
states.  Nor  was  this  all.  Without  some  general  power 
over  the  subject,  the  commerce  of  the  Union  was  fated  to 
embarrassment  and  to  languishing.  During  the  war,  it 
had  been  nearly  annihilated  by  the  superior  naval  power  of 
Great  Britain,  and  the  return  of  peace  enabled  her  in  a 
great  measure  to  monopolize  all  the  benefits  of  our  trade. 
British  ships,  with  their  commodities,  had  free  admission 
into  our  ports,  while  American  ships  and  exports  were 
loaded  with  heavy  exactions,  or  were  prohibited  from  en- 
try into  British  ports.  In  April  1784,  congress  asked  the 
power  for  fifteen  years  only  to  prohibit  the  importation  and 
exportation  of  goods  in  the  ships  of  nations  with  whom 
we  had  no  commercial  treaties,  and  to  prohibit  subjects  of 
foreign  nations  from  importing  any  goods  not  the  produce 
or  manufacture  of  the  dominions  of  their  own  sovereign. 
It  was  refused,  as  was  also  a  subse([uent  proposal  to  grant 
the  power  of  regulating  commerce  and  laying  duties, 
though  those  duties  were  to  be  collected  by  and  paid  over 
to  the  states.  This  proposition  did  not  find  sufficient  coun- 
tenance even  in  congress  itself  for  its  passage  by  that  oody, 
and  thus  the  regulation  of  commerce  by  congress,  which 
under  our  present  constitution  has  been  found  to  contri- 
bute so  largely  to  our  national  prosperity,  was  rejected, 
even  in  its  least  objectionable  and  least  alarming  form. 
10* 


114  LECTURES    ON 

There  were  other  defects  seriously  urged  against  the 
confederation,  which  justified  doubts  of  its  efficacy  as  a 
bond  of  union,  or  as  an  enduring  scheme  of  government. 
At  length  commissioners  were  appointed  by  the  state  of 
Virginia, (f)  to  meet  commissioners  from  other  states,  to 
take  into  consideration  the  trade  of  the  United  States,  and 
the  relative  situation  of  the  trade  of  the  states ;  and  to  re- 
port such  an  act  on  the  subject,  as  when  ratified  would  en- 
able congress  to  provide  the  necessary  regulations.  The 
commissioners  of  five  states  oidy,  met  at  Annapolis  in  Sep- 
tember 1780,  and  recommended  the  appointment  of  other 
commissioners,  to  meet  at  Philadelphia  in  May  thereafter, 
"  to  take  into  consideration  the  situation  of  the  United 
States,  and  to  devise  such  further  provisions  as  should  ap- 
pear to  them  necessary  to  render  the  constitution  of  the 
federal  government  adequate  to  the  exigencies  of  the 
Union  ;  and  to  report  also  such  an  act  to  congress  as  when 
agreed  to  by  it,  and  ratified  by  the  states,  would  effectually 
provide  for  the  same."  In  February  17S7,  a  motion  was 
accordingly  moved,  and  carried  in  congress,  recommend- 
ing a  convention  in  Philadelphia,  for  the  purpose  of  revi- 
sing and  amending  the  articles  of  confederation.  The 
convention  met  in  May,  (Rhode  Island  alone  having  de- 
clined to  send  representatives,)  and  in  September  1787, 
adopted  the  present  constitution  ;  and  directed  it  to  be  laid 
before  congress,  recommending,  at  the  same  time,  that  it 
should  be  submitted  to  conventions  of  delegates  chosen  in 
each  state  by  the  people  thereof,  under  a  recommenda- 
tion of  its  legislature  for  their  assent  and  ratification. 
Conventions  accordingly  met,  and  the  constitution  was  at 
length  finally  adopted  with  amendments,  though  the  ratifi- 
cation of  North  Carolina  was  delayed  till  November  1789, 
and  that  of  Rhode  Island  until  May  1790.  During  the 
respective  intervals,  those  states  were  altogether  sovereign 
and  independent.  For  nine  states  having  adopted  the  con- 
stitution, the  old  confederation  was  at  an  end,  and  the  new 
government  went  into  operation  on  the  4th  of  March  1789, 
at  which  date,  neither  of  those  states  were  members  of  the 
Union.  General  Washington  was  sworn  into  office  on  the 
30th  of  April  1789. 

(c)  The  commissioners  for  Virginia  who  acted,  were  Edmund 
llandolpli,  James  Madison  and  St.  George  Tucker. 


CONSTITUTIONAL    LAW.  115 

After  this  rapid  sketch  of  the  origin  and  adoption  of  the 
constitution  of  the  United  States,  I  shall  now  proceed  to 
the  consideration  of  its  nature,  presenting  the  student, 
however,  in  the  first  instance,  with  judge  Story's  view  of 
the  same  matter,  as  he  has  given  it  to  us  in  the  3d  chapter 
of  the  3d  book  of  his  Commentaries  : 

"  §  308.  In  the  first  place,"'  says  he,  "  what  is  the  true 
nature  and  import  of  the  instrument?  Is  it  a  treaty,  a 
convention,  a  league,  a  contract,  or  a  compact?  Who  are 
the  parties  to  it?  By  whom  was  it  made?  By  whom  was 
it  ratified  ?  What  are  its  obligations  ?  By  whom,  and  in 
what  manner  may  it  be  dissolved?  Who  are  to  determine 
its  validity  and  construction  ?  Who  are  to  decide  upon 
the  supposed  infractions  and  violations  of  it  ?  These  are 
questions  often  asked,  and  often  discussed,  not  merely  for 
the  purpose  of  theoretical  speculation,  but  as  matters  of 
practical  importance,  and  of  earnest  and  even  of  vehement 
debate. 

"§310.  It  has  been  asserted  by  a  learned  commenta- 
tor(y')  that  the  constitution  of  the  United  States  is  an  ori- 
ginal, written,  federal,  and  social  compact,  freely,  volun- 
tarily, and  solemnly  entered  into  by  the  several  states,  and 
ratified  by  the  people  thereof  respectively ;  whereby  the 
several  states,  and  the  people  thereof,  respectively  have 
bound  themselves  to  each  other,  and  to  the  federal  govern- 
ment of  the  United  States,  and  by  which  the  federal  go- 
vernment is  bound  to  the  several  states  and  to  every  citi- 
zen of  the  United  States.  The  author  proceeds  to  ex- 
pound every  part  of  this  definition  at  large.  It  is  (says 
he)  a  compact,  by  which  it  is  distinguished  from  a  charter 
or  grant,  which  is  either  the  act  of  a  superior  to  an  infe- 
rior, or  is  founded  upon  some  consideration  moving  from 
one  of  the  parties  to  the  other,  and  operates  as  an  ex- 
change or  sale.(^)  But  here  the  contracting  parties,  whe- 
ther considered  as  states  in  their  political  capacity  and 
character,  or  as  individuals,  are  all  equal  ;  nor  is  there  any 
thing  granted  from  one  to  another ;  but  each  stipulates  to 

(/)  1  Tucker's  Black.  Comm.  App.  note  D,  p.  140  et  seq.* 
(g)  1  Tucker's  Black.  Comm.  App.  note  D,  p.  141. 

[*  The  views  of  judge  Tucker,  as  here  presented,  have  generally  the  concur- 
rence of  that  party  in  tiie  United  States  which  is  usually  denominated  the  state- 
rights  party.] 


116  LECTURES    ON 

part  with,  and  receive  the  same  thing  precisely  without 
any  distinction  or  difference  between  any  of  the  parties. 

"  §  311.  It  is  a  federal  compact. (A)  Several  sovereign 
and  independent  states  may  unite  themselves  together  by 
a  perpetual  confederation,  without  each  ceasing  to  be  a 
perfect  state.  They  will  together  form  a  federal  republic. 
The  deliberations  in  common  will  offer  no  violence  to  each 
member,  though  they  may  in  certain  respects  put  some  con- 
straint on  the  exercise  of  it  in  virtue  of  voluntary  engage- 
ments. The  extent,  modifications,  and  objects  of  the  fe- 
deral authority  are  mere  matters  of  discretion. (?)  So  long 
as  the  separate  organization  of  the  members  remains,  and, 
from  the  nature  of  the  compact,  must  continue  to  exist 
both  for  local  and  domestic,  and  for  federal  purposes,  the 
union  is  in  fact,  as  well  as  in  theory,  an  association  of 
states,  or  a  confederacy. 

"§313.  It  may  be  proper  to  illustrate  the  distinction 
between  federal  compacts  and  obligations,  and  such  as  are 
social,  by  one  or  two  examples. (/;)  A  federal  compact, 
alliance,  or  treaty,  is  an  act  of  the  state  or  body  politic, 

(A)  Mr.  Jefferson  asserts,  that  tlie  constitution  of  the  United 
States  is  a  compact  between  the  states.  "  They  entered  into  a 
compact,"  says  he,  (in  a  paper  designed  to  be  adopted  by  tlie  le- 
gislature of  Virginia,  as  a  solemn  protest,)  "  which  is  called  the 
Constitution  of  the  United  States  of  America,  by  which  they 
agreed  to  unite  in  a  single  government,  as  to  their  relations  with 
each,  and  with  foreign  nations,  and  as  to  certain  otlier  articles 
particularly  specified.'"*  It  would,  I  imagine,  be  very  difficult  to 
point  out  when,  and  in  what  manner,  any  such  compact  was  made. 
The  constitution  was  neither  made,  nor  ratified  by  the  states,  as 
sovereignties,  or  political  communities.  It  was  framed  by  a  con- 
vention! proposed  to  the  people  of  tlie  states  for  their  adoption  by 
congress;  and  was  adopted  by  state  conventions — the  immediate 
representatives  of  the  people. 

(i)  1  Tucker's  Black.  Comm.  Appx.  note  D,  p.  141. 

(Ic)  Id.  145. 

*4  Jefferson's  Corresp.  415. 

[t  To  prove  thai  the  constitution  was  not  made  by  the  states,  our  author  says 
it  was  framed  by  a  convention.  A  convention  of  whom  .'Of  the  delegates  of  thir- 
teen separate  and  distinct  communities,  each  responsible  to  its  own  state  only, 
voting  by  slates,  and  each  state  having  but  one  vote.  These  delegates  were  ap- 
pointed by  the  state  legislatures,  and  were  subject  to  their  control.  This  con- 
vention wa.s  called  at  the  suggestion  of  yfrc  states,  by  the  congress  of  the  United 
States,  which  represented  states.  The  constitution  was  recommended  by  it  to 
the  states,  and  the  states-  each  called  a  convention  of  their  own,  representing  it- 
self only,  and  ratified  the  constitution.  Throughout  the  whole  the  action  was 
state  action.  Tliere  was  no  nationality  about  it.  See  the  remarks.  Lectures,  p. 
43,  86,  87.] 


CONSTITUTIONAL    LAW.  117 

and  not  of  an  individual.  On  the  contrary,  a  social  com- 
pact is  understood  to  mean  the  act  of  individuals  about  to 
create  and  establish  a  state  or  body  politic  among  them- 
selves. If  one  nation  binds  itself  by  treaty  to  pay  a  cer- 
tain tribute  to  another ;  or  if  all  the  members  of  the  same 
confederacy  oblige  themselves  to  furnish  their  quotas  of  a 
common  expense,  when  required;  in  either  of  these  cases, 
the  state  or  body  politic  only,  and  not  the  individual,  is  an- 
swerable for  this  tribute  or  quota.  This  is,  therefore,  a 
federal  obligation.  But,  where  by  any  compact,  express  or 
implied  ;  a  number  of  persons  are  bound  to  contribute  their 
proportions  of  the  common  expenses,  or  to  submit  to  all 
laws  made  by  the  common  consent ;  and  where  in  default 
of  compliance  with  these  engagements  the  society  is  au- 
thorized to  levy  the  contribution,  or  to  punish  the  person 
of  the  delinquent ;  this  seems  to  be  understood  to  be  more 
in  the  nature  of  a  social,  than  a  federal  obligation. (/) 

"  §  314.  It  is  an  original  compact.  Whatever  political 
relation  existed  between  the  American  colonies  antece- 
dent to  the  revolution,  as  constituent  parts  of  the  British 
empire,  or  as  dependencies  upon  it,  that  relation  was  com- 
pletely dissolved,  and  annihilated  from  that  period.  From 
the  moment  of  the  revolution  they  became  severally  inde- 
pendent and  sovereign  states,  possessing  all  the  rights,  ju- 
risdictions, and  authority  that  other  sovereign  states,  how- 
ever constituted,  or  by  whatever  title  denominated,  possess  ; 
and  bound  by  no  ties,  but  of  their  own  creation,  except 
such,  as  all  other  civilized  nations  are  equally  bound  by, 
and  which  together  constitute  the  customary  law  of  na- 
tions.(/«)* 

(I)  1  Tucker's  Black.  Comm.  App.  note  D,  p.  145. 

(m)  Id.  150. — These  views  are  very  different  from  those  vrhich 
Mr.  Dane  has,  with  so  much  force  and  perspicuity,  urged  in  his 
Appendix  to  his  Abridgment  to  the  Law,  §  '2,  p.  10,  &c. 

"  In  order  correctly  to  ascertain  this  rank,  this  linking  together, 
and  this  subordination,  we  must  go  back  as   far  as  January  1774, 

[*  This  seems  to  me  strictly  true.  Judge  Story  obviously  sides 
with  Mr.  Dane,  whose  notions  I  deem  as  unsound  as  they  re  no- 
vel. Such  absurdities  scarcely  admit  of  a  grave  and  calm  refuta- 
tion. I  shall  content  myself,  therefore,  with  referring  to  what  is 
said  ante,  p.  36,  and  seq.,  86,  and  scq.,  and  with  contrasting  with 
these  notions,  the  authoritative  opinions  of  judges  Iredell  and 
Chase,  p.  44,  46,  and  92.] 


118  LECTURES    ON 

**  §  315.  It  is  a  written  compact.  Considered  as  a  fe- 
deral compact  or  alliance  between  the  states,  there  is 
nothing  new  or  singular  in  this  circumstance,  as  all  na- 
tional compacts  since  the  invention  of  letters,  have  proba- 
bly been  reduced  to  that  form.  But  considered  in  the 
light  of  an  original  social  compact,  the  American  revolu- 
tion seems  to  have  given  birth  to  this  new  political  phe- 
nomenon. In  every  state  a  written  constitution  was 
framed,  and  adopted  by  the  people  both  in  their  individual 
and  sovereign  capacity  and  character. (?i) 

"§316.  It  is  a  compact  freely,  voluntarily  and  so- 
lemnly entered  into  by  the  several  states,  and  ratified  by 

when  the  thirteen  states  existed  constitutionally,  in  the  condition 
of  thirteen  British  colonies,  yet,  de  facto,  the  people  of  them  exer- 
cised original,  sovereign  power  in  their  institution  in  1774,  of  the 
continental  congress;  and,  especially,  in  June  1775,  then  vesting 
in  it  the  great  national  powers,  that  will  be  described ;  scarcely 
any  of  which  were  resumed.  The  result  will  shew,  that,  on  rcvo- 
lutionary  principles,  the  general  government  was,  by  the  sovereign 
acts  of  this  people,  first  created  dc  novo,  and  de  facto  instituted; 
and  by  tlie  same  acts,  the  people  vested  in  it  very  extensive  pow- 
ers, which  have  ever  remained  in  it  modified  and  defined  by  the 
articles  of  confederation,  and  enlarged  and  arranged  anew  by  the 
constitution  of  the  United  States — 2d.  that  tiie  state  governments 
and  states,  as  free  and  independent  states,  were,  July  4th,  1776, 
created  by  the  general  government,  empowered  to  do  it  by  the  peo- 
ple, acting  on  revolutionary  principles,  and  in  their  original,  sove- 
reign capacity ;  and  that  all  the  state  governments,  as  such,  have 
been  instituted  during  the  existence  of  the  general  government, 
and  in  subordination  to  it,  and  two  thirds  of  them  since  the  con- 
stitution of  the  United  States  was  ordained  and  estabi ishcd  by 
all  the  people  thereof;  in  that  sovereign  capacity.  These  state 
governments  have  been,  by  the  people  of  each  state,  instituted 
under,  and,  expressly  or  impliedly,  in  subordination  to  the  ge- 
neral government,  which  is  expressly  recognized  by  all  to  be  su- 
preme law ;  and  as  tlie  power  of  the  whole  is,  in  the  nature  of 
things,  superior  to  the  power  of  a  part,  other  things  being  equal, 
the  power  of  a  state,  a  part,  is  inferior  to  the  power  of  all  the 
states.  Assertions  that  eacli  of  the  twenty-four  states  is  completely 
sovereign,  that  is,  as  sovereign  as  Russia,  or  France,  of  course  as 
sovereign  as  all  the  states,  and  that  this  sovereignty  is  above  ju- 
dicial cognizance,  merit  special  attention." 

(n)  1  Tucker's  Black.  Comm.  App.  note  D,  p.  153. — There  is  an 
inaccuracy  here;  Connecticut  did  not  form  a  constitution  until 
1818,  and  existed  until  that  period  under  her  colonial  charter. 
Rhode  Island  still  is  without  any  constitution,  and  exercises  the 
powers  of  government  under  her  colonial  charter. 


CONSTITUTIONAL    LAW.  119 

the  people  thereof  respectively ;  freely,  there  being  nei- 
ther external  nor  internal  force  or  violence  to  influence,  or 
promote  the  measure;  the  United  States  being  at  peace 
with  all  the  world  and  in  perfect  tranquillity  in  each  state; 
voluntarily,  because  the  measure  had  its  commencement  in 
the  spontaneous  acts  of  the  state  legislatures,  prompted  by 
a  due  sense  of  the  necessity  of  some  change  in  the  exist- 
ing confederation  ;  and  solemnly,  as  having  been  discussed, 
not  only  in  the  general  convention,  which  proposed  and 
framed  it;  but  afterwards  in  the  legislatures  of  the  several 
states;  and  finally  in  the  conventions  of  all  the  states,  by 
whom  it  was  adopted  and  ratified. (o) 

"  §  317.  It  is  a  compact  by  which  the  several  states  and 
the  people  thereof  respectively  have  bound  themselves  to 
each  other,  and  to  the  federal  government.  The  consti- 
tution had  its  commencement  with  the  body  politic  of  the 
several  states  ;  and  its  final  adoption  and  ratification  was 
by  the  several  legislatures  referred  to,  and  completed  by 
conventions  especially,  called  and  appointed  for  that  pur- 
pose in  each  state.  The  acceptance  of  the  constitution 
was  not  only  an  act  of  the  body  politic  of  each  state,  but 
of  the  people  thereof  respectively  in  their  sovereign  cha- 
racter and  capacity.  The  body  politic  was  competent  to 
bind  itself,  so  far  as  the  constitution  of  the  state  permit- 
ted.(^)  But  not  having  power  to  bind  the  people  in  cases 
beyond  their  constitutional  authority,  the  assent  of  the 
people  was  indispensably  necessary  to  the  validity  of  the 
compact,  by  which  the  rights  of  the  people  might  be  di- 
minished, or  submitted  to  a  new  jurisdiction,  or  in  any 
manner  affected.  From  hence,  not  only  the  body  politic 
of  the  several  states,  but  every  citizen  thereof,  may  be 
considered  as  parties  to  the  compact,  and  to  have  bound 
themselves  reciprocally  to  each  other  for  the  due  obser- 
vance of  it ;  and  also  to  have  bound  themselves  to  the  fe- 
deral government,  whose  authority  has  been  thereby  cre- 
ated and  established. (7)* 

(0)  1  Tucker's  Black.  Comra.  note  D,  p.  155,  156. 
(/>)  Id.  169. 
{q)  Id.  170. 

["The  legislature  of  a  state  can  never  of  itself  make  a  new  con- 
stitution, since  in  so  doing  it  must  enlarge  or  limit  its  powers  other- 


120  LECTURES    ON 

"§318.  Lastly.  It  is  a  compact,  by  which  the  fe- 
deral government  is  bound  to  the  several  states,  and 
to  every  citizen  of  the  United  States.  Although  the  fe- 
deral government  can  in  no  possible  view  be  considered 
as  a  party  to  a  compact  made  anterior  to  its  existence, 
and  by  which  it  was  in  fact  created ;  yet,  as  the  creature 
of  that  compact,  it  must  be  bound  by  it  to  its  creators,  the 
several  states  in  the  Union,  and  the  citizens  thereof  Hav- 
ing no  existence,  but  under  the  constitution,  nor  any  rights 
but  such  as  that  instrument  confers ;  and  those  very  rights, 
being  in  fact  duties,  it  can  possess  no  legitimate  power, 
but  such  as  is  absolutely  necessary  for  the  performance  of 
a  duty  prescribed,  and  enjoined  by  the  constitution. (r)  Its 
duties  then  became  the  exact  measure  of  its  powers;  and 
whenever  it  exerts  a  power  for  any  other  purpose,  than  the 
performance  of  a  duty  prescribed  by  the  constitution,  it 
transgresses  its  proper  limits,  and  violates  the  public  trust. 
Its  duties  being  moreover  imposed  for  the  general  benefit 
and  security  of  the  several  states  in  their  political  charac- 
ter, and  of  tiie  people,  both  in  their  sovereign  and  indi- 
vidual capacity,  if  these  objects  be  not  obtained,  the  go- 
vernment does  not  answer  the  end  of  its  creation.  It  is, 
therefore,  bound  to  the  several  states  respectively,  and  to 
every  citizen  thereof,  for  the  due  execution  of  those  du- 
ties, and  the  observance  of  this  obligation  is  enforced  un- 
der the  solemn  sanction  of  an  oath  from  those,  who  ad- 
minister the  government. 

"  §  319.  Such  is  a  summary  of  the  reasoning  of  the  learn- 
ed author,  by  which  he  has  undertaken  to  vindicate  his 
views  of  the  nature  of  the  constitution.  That  reasoning 
has  been  quoted  at  large,  and  for  tlie  most  part  in  his  own 
words;  not  merely  as  his  own,  but  as  representing,  in  a 
general  sense,  the  opinions  of  a  large  body  of  statesmen 
and  jurists  in  different  parts  of  the  Union,  avowed  and 
acted  upon  in  former  times;  and  recently  revived  under 

(»•)  1  Tucker's  Black.  Comm.  note  D,  p.  ]70. 

wise  than  as  prescribed  by  the  constitution  which  gave  it  being. 
It  can  only  refer  the  matter  to  the  action  of  the  people  of  its  oicn 
state  througli  a  convention.  And  the  action  of  such  convention  is 
state  action,  because  the  convention  represents  a  separate  and  in- 
dependent state.     (See  Story,  330.] 


CONSTITUTIONAL    LAW.  121 

circumstances,  which  have  given  them  increased  impor- 
tance, if  not  a  perilous  influence,(s) 

"  §  320.  It  is  wholly  beside  our  present  purpose  to  en- 
gage in  a  critical  commentary  upon  the  different  parts  of 
this  exposition.  It  will  be  sufficient  for  all  the  practical 
objects  we  have  in  view,  to  suggest  the  difficulties  of  main- 

(s)  Many  traces  of  these  opinions  will  be  found  in  the  public  de- 
bates in  the  state  legislatures  and  in  congress  at  different  periods. 
In  the  resolutions  of  Mr.  Taylor,  in  the  Virginia  legislature  in 
1798,  it  was  resolved,  "that  this  assembly  doth  explicitly  and  pe- 
remptorily declare,  that  it  views  the  powers  of  the  federal  govern- 
ment as  resulting  from  the  compact,  to  ichich  the  states  are  j)ar- 
ties." — See  Dane's  Apendi.v,  p.  17.  Tlie  original  resolution  had 
the  word  '^  alone"  after  "states,"  which  was  struck  out  upon  the 
motion  of  the  original  mover,  it  having  been  asserted  in  the  debate, 
that  the  people  were  parties  also,  and  by  some  of  the  speakers,  that 
the  people  were  exclusively  parties. 

The  Kentucky  resolutions  of  171)7,  (which  were  drafted  by  Mr. 
Jefferson,)  declare  "that  to  this  compact  [the  federal  constitution] 
each  state  acceded  as  a  state,  and  is  an  integral  party."  North 
American  Review,  October  1830,  p.  501,  545.  In  the  resolutions 
of  the  senate  of  South  Carolina,  in  November  1817,  it  is  declared, 
*'  that  the  constitution  of  the  United  States  is  a  compact  between 
the  people  of  the  different  states  with  each  other,  as  separate  and 
independent  sovereignties."  In  November  1799,  the  Kentucky  le- 
gislature passed  a  resolution,  declaring,  that  the  federal  states  had 
a  right  to  judge  of  any  infraction  of  the  constitution,  and,  that  a 
nullification  by  those  sovereignties  of  all  unauthorized  acts  done 
under  colour  of  that  instrument  is  the  rightful  remedy.  North 
American  Review,  Id.  503.  Mr.  Madison,  in  the  Virginia  report 
of  1800,  re-asserts  the  right  of  the  states,  as  parties,  to  decide  upon 
the  unconstitutionality  of  any  measure.  Report,  p.  6,  7,  8,  9.  The 
Virginia  legislature,  in  1829,  passed  a  resolution,  declaring,  that 
"  the  constitution  of  the  United  States  being  a  federative  compact 
between  sovereign  states,  in  construing  which  no  common  arbiter 
is  known,  each  state  has  the  right  to  construe  the  compact  for  it- 
self."* Mr.  vice  president  Calhoun's  letter  to  governor  Hamilton, 
of  August  28,  1S32,  contains  a  very  elaborate  exposition  of  this 
among  other  doctrines. 

Mr.  Dane,  in  his  Appendix,  (§  3,  p.  H,)  says,  that  for  forty  years 
one  great  party  has  received  the  constitution,  as  a  federative  com- 
pact among  the  states,  and  the  other  great  party,  not  as  such  a  com- 
pact, but  in  the  main,  national  and  popular.  Tlie  grave  debate  in 
the  senate  of  the  United  States,  on  Mr.  Foot's  resolution,  .n  the 
winter  of  1830,  deserves  to  be  read  for  its  able  exposition  of  the 
doctrines  maintained  on  each  side.  Mr.  Dane  makes  frequent  re- 
ferences to  it  in  his  Appendix. — 4  Elliot's  Debates,  315  to  330. 


3  American  Annual  Register  ;  Local  History,  131. 
1  1 


11 


122  LECTURES    ON 

taining  its  leading  positions,  to  expound  the  objections, 
which  have  been  urged  against  them,  and  to  bring  into  no- 
tice those  opinions,  which  rest  on  a  very  different  basis  of 
principles. 

"§  321.  The  obvious  deductions,*  which  may  be,  and 
indeed  have  been,  drawn  from  considering  the  constitution 
as  a  compact  between  the  states,  are,  that  it  operates  as  a 
mere  treaty,  or  convention  between  them,  and  has  an  obli- 
gatory force  upon  each  state  no  longer,  than  suits  its  plea- 
sure, or  its  consent  continues;  that  each  state  has  a  right 
to  judge  for  itself  in  relation  to  the  nature,  extent  and  ob- 
ligations of  the  instrument,  without  being  at  all  bound  by 
the  interpretation  of  the  federal  government,  or  by  that  of 
any  other  state ;  and  that  each  retains  the  power  to  with- 
draw from  the  confederacy  and  to  dissolve  the  connex- 
ion, when  such  shall  be  its  choice ;  and  may  suspend  the 
operations  of  the  federal  government,  and  nullify  its  acts 
within  its  own  territorial  limits,  whenever,  in  its  own  opi- 
nion, the  exigency  of  the  case  may  require. (^)    These  con- 

(t)  Virginia,  in  the  resolutions  of  her  legislature  on  the  tariff,  in 
February  1829,  declared,  "  that  there  is  no  common  arbiter  to  con- 
strue the  constitution  ;  being  a  federative  compact  hettceen  sove- 
reign states,  each  state  has  a  right  to  construe  the  compact  for  it- 
self." 9  Dane's  Abridg.  ch.  187,  art.  20,  §  14,  p.  589.  See  also 
North  American  Review,  October  1830,  p.  488  to  528.  The  reso- 
lutions of  Kentucky  of  1798,  contain  a  like  declaration,  that  "to 
this  compact  [the  constitution]  each  state  acceded  as  a  state,  and 
is  an  integral  party  ;  that  the  government  created  by  this  compact 
was  not  made  the  exclusive,  or  final  judge  of  the  powers  delega- 
ted to  itself,  &c. ;  but  that,  as  in  all  other  cases  of  compact  among 
parties  having  no  common  judge,  each  party  has  an  equal  right  to 
judge  for  itself,  as  tcell  of  infraction^',  as  of  the  mode  and  measure 
of  redress."  North  American  Review,  October  1830,  p.  501.  The 
Kentucky  resolutions  of  1799,  go  further,  and  assert,  "that  the 
several  states  who  formed  that  instrument,  [the  constitution,]  be- 
ing sovereign  and  independent,  have  the  unquestionable  right  to 
judge  of  its  infraction  ;  and  that  a  nullification  by  those  sovereign- 

[*  How  far  these  deductions  are  disavowed,  and  what  principles 
are  considered  as  legitimate,  in  reference  to  the  right  of  a  state  to 
judge  of  infractions,  and  to  determine  for  itself,  the  nature  and  ex- 
tent of  its  obligations,  will  be  hereafter  shewn.  It  will  then  ap- 
pear, that  the  author  of  these  pages,  is  neither  nullifier  nor  anar- 
chist, and  that  however  he  differs  from  the  learned  commentator  in 
his  premises,  he  will  not  merit  his  reproaches  for  the  conclusions 
to  which  he  arrives.] 


CONSTITUTIONAL    LAW.  123 

elusions  may  not  always  be  avowed ;  but  they  flow  natu- 
rally from  the  doctrines,  which  we  have  under  considera- 
tion.(«)  They  go  to  the  e.Ktent  of  reducing  the  govern- 
ment to  a  mere  confederacy  during  pleasure ;  and  of  thus 
presenting  the  extraordinary  spectacle  of  a  nation  existing 
only  at  the  will  of  each  of  its  constituent  parts. 

"  §  322.  If  this  be  the  true  interpretation  of  the  instru- 
ment, it  has  wholly  failed  to  express  the  intentions  of  its  fra- 
mers,  and  brings  back,  or  at  least  may  bring  back,  upon  us 
all  the  evils  of  the  old  confederation,  from  which  we  were 
supposed  to  have  had  a  safe  deliverance.  For  the  power 
to  operate  upon  individuals,  instead  of  operating  merely 
on  states,  is  of  little  consequence,  though  yielded  by  the 
constitution,  if  that  power  is  to  depend  for  its  exercise 
upon  the  continual  consent  of  all  the  members  upon  every 
emergency.  We  have  already  seen,  that  the  framers  of  the 
instrument  contemplated  no  such  dependence.  Even  under 
the  confederation  it  was  deemed  a  gross  heresy  to  main- 
tain that  a  party  to  a  compact  has  a  right  to  revoke  that 
compact;  and  the  possibility  of  a  question  of  this  nature 
was  deemed  to  prove  the  necessity  of  laying  the  founda- 
tions of  our  national  government  deeper,  than  in  the  mere 
sanction  of  delegated  authority. (f)     '  A  compact  between 

ties  of  all  unauthorized  acts  done  under  colour  of  that  instrument 
is  the  rightful  remedy."  North  Araerican  Review,  Id.  503;  4  El- 
liot's Debates,  315,  322.  In  Mr.  Madison's  Report  in  the  Virginia 
legislature,  in  January  1800,  it  is  also  affirmed  that  the  states  are 
parties  to  the  constitution  ;  but  by  states  he  here  means  (as  the  con- 
text explains)  the  people  of  llie  states.  That  report  insists,  that 
the  states  are  in  the  last  resort,  the  ultimate  judges  of  the  infrac- 
tions of  the  constitution,     p.  6",  7,  8,  9. 

(?<)  I  do  not  mean  to  assert,  that  all  those,  who  held  these  doc- 
trines, have  adopted  the  conclusions  drawn  from  them.  There  are 
eminent  exceptions ;  and  among  them  the  learned  commentator 
on  Blackstone's  Commentaries  seems  properly  numbered.  See  1 
Tucker's  Black.  App.  170,  171,  §  8.  See  the  debates  in  the  senate 
on  Mr.  Foot's  resolution  in  1830,  and  Mr.  Dane's  Appendix,  and 
his  Abridgment  and  Digest,  9th  vol.  ch.  187,  art.  20,  §  13  to  22,  p. 
588,  et  seq.;  North  American  Review  for  October  1830,  on  the 
debates  on  the  public  lands,  p.  481  to  486,  488  to  528;  4  Elliot's 
Debates,  315  to  330;  Madison's  Virginia  Report,  January  K)0,  p. 
6,  7,  8,  9;  4  Jefferson's  Correspondence,  415;  vice  president  Cal- 
houn's letter  to  governor  Hamilton,  August  28,  1832. 

(r)  The  Federalist,  No,  22;  Id.  No.  43;  see  also  Mr.  Patterson's 
opinion  in  the  convention,  4  Elliot's  Debates,  74,  75;  and  Yates's 
Minutes. 


124  LECTURES    ON 

independent  sovereigns,  founded  on  acts  of  legislative  au- 
thority, can  pretend  to  no  higher  validity,  than  a  league  or 
treaty  between  the  parties.  It  is  an  established  doctrine 
on  the  subject  of  treaties,  that  all  the  articles  are  mutually 
conditions  of  each  other  ;  that  a  breach  of  any  one  article 
is  a  breach  of  the  whole  treaty ;  and  that  a  breach  com- 
mitted by  either  of  the  parties  absolves  the  others,  and  au- 
thorizes them,  if  they  please,  to  pronounce  the  compact 
violated  and  void.'(?^)  Consequences  like  these,  which 
place  the  dissolution  of  the  government  in  the  hands  of  a 
single  state,  and  enable  it  at  will  to  defeat,  or  suspend  the 
operation  of  the  laws  of  the  Union,  are  too  serious,  not  to 
require  us  to  scrutinize  with  the  utmost  care  and  caution 
the  principles,  from  which  they  flow,  and  by  which  they 
are  attempted  to  be  justified.* 

"§  350.  In  what  light,  then,  is  the  constitution  of  the 
United  States  to  be  regarded  ?t  Is  it  a  mere  compact, 
treaty,  or  confederation  of  the  states  composing  the  Union, 

(lo)  The  Federalist,  No.  43.— Mr.  Madison,  in  the  Virginia  Re- 
port of  January  1800,  asserts,  (p.  6,  7,)  that  "  the  states  being  par- 
ties to  tlie  constitutional  compact,  and  in  their  sovereign  capacity, 
it  follows  of  necessity,  that  there  can  be  no  tribunal  above  their 
authority  to  decide  in  the  last  resort,  whether  the  compact  made 
by  them  be  violated  ;  and  consequently,  that  as  the  parties  to  it, 
they  must  themselves  decide  in  the  last  resort  such  questions,  as 
may  be  of  sufBcient  magnitude  to  require  their  interposition."  Id. 
p.  8,  9. 

[*  Such  a  heresy  will  not  be  found  in  these  pages.  While  their 
author  admits  that  every  party  to  a  compact  has  a  right  to  judge  of 
its  infraction,  and  to  refuse  longer  to  be  bound  by  it  when  broken, 
he  contends  on  the  other  hand,  tliat  every  other  party  has  an  equal 
right  to  judge,  and  that  the  recusant  acts  upon  his  own  responsi- 
bility, in  undertaking  to  decide  and  to  act  contrary  to  tJie  pre- 
vailing opinion  of  tiie  other  parties  to  the  contract.] 

[t  As  a  compact  between  the  states,  vvliereby  they  have  ordained 
and  established  tlie  constitution  for  the  United  States  of  /  lerica. 
The  people  of  tlie  thirteen  distinct  and  separate  political  bodies  or 
communities  constituting  states,  agreed  together  in  a  general  con- 
vention of  delegates  from  them  severally  and  respectively,  to  or- 
dain and  establisli  the  constitution  as  a  form  of  government  for  the 
United  States.  The  constitution  may  therefore  be  looked  upon 
rather  as  the  result  of  the  agreement,  (see  page  3ii9,)  than  as  the 
agreement  itself.  The  agreement  of  tlie  states  is  in  the  preamble, 
"  We,  the  people  of  the  United  States,  do  ordain  and  establish  this 
constitution  for  the  United  States  of  America."] 


CONSTITUTIONAL    LAW.  125 

or  of  the  people  thereof,  whereby  each  of  the  several 
states,  and  the  people  thereof,  have  respectively  bound 
themselves  to  each  other?  Or  is  it  a  form  of  government, 
which,  having  been  ratified  by  a  majority  of  the  people  in 
all  the  states,  is  obligatory  upon  them,  as  the  prescribed 
rule  of  conduct  of  the  sovereign  power,  to  the  extent  of 
its  provisions? 

"351.  Let  us  consider,  in  the  first  place,  whether  it  is 
to  be  deemed  a  compact.  By  this,  we  do  not  mean  an  act 
of  solemn  assent  by  the  people  to  it,  as  a  form  of  govern- 
ment, (of  which  there  is  no  room  for  doubt,)  but  a  contract 
imposing  mutual  obligations,  and  contemplating  the  per- 
manent subsistence  of  parties  having  an  independent  right 
to  construe,  control,  and  judge  of  its  obligations.  If  in 
this  latter  sense  it  is  to  be  deemed  a  compact,  it  must  be, 
either  because  it  contains  on  its  face  stipulations  to  that 
effect,  or  because  it  is  necessarily  implied  from  the  nature 
and  objects  of  a  frame  of  government. 

"  §  352.  There  is  nowhere  found  upon  the  face*  of  the 
constitution  any  clause,  intimating  it  to  be  a  compact,  or  in 
anywise  providing  for  its  interpretation,  as  such.  On  the 
contrary,  the  preamble  emphatically  speaks  of  it,  as  a  so- 
lemn ordinance  and  establishment  of  government.  The 
language  is,  '  VVe,  the  people  of  the  United  States,  do  o?-- 
dain  and  establish  this  constitution  for  the  United  States  of 
America.'  The  people  do  ordain  and  establish,  not  con- 
tract and  stipulate  with  each  other. (r)  The  people  of  the 
United  States,  not  the  distinct  people  of  k  particular  state 

(z)  The  words  "ordain  and  establish"  are  also  found  in  tlie  3d 
article  of  the  constitution.  "The  judicial  power  shall  be  vested 
in  one  supreme  court,  and  in  such  inferior  courts,  as  the  congress 
may  from  time  to  time  ordain  and  establish."  How  is  this  to  be 
done  by  congress  ?  Plainly  by  a  law  ;  and  when  ordained  and  es- 
tablished, is  such  a  law  a  contract  or  compact  between  the  legisla- 
ture and  the  people,  or  the  court,  or  the  different  departments  of 
the  government?  No.  It  is  neither  more  nor  less  than  a  law, 
made  by  competent  authority,  upon  an  assent  or  agreement  of 
minds.  In  Martin  v.  Hunter,  (1  Wheat.  R.  304,  324,)  the  supreme 
court  said,  "  The  constitution  of  the  United  States  was  ordained 

[*  The  fallacy  of  this  position,  and  of  the  greater  part  of  those 
which  follow  in  the  e-xtract  from  the  Commentaries,  cannot  be  ful- 
ly exposed  in  a  note.  I  shall  therefore  give,  as  we  proceed,  only 
a  few  short  annotations,  and  hereafter  take  up  and  examine  the  re- 
sidue of  the  passage  in  detail.] 
11* 


126  LECTURES    ON 

with  the  people  of  tlie  other  states.  The  people  ordain 
and  establish  a  '  constitution,'  not  a  '  confederation.'  The 
distinction  between  a  constitution  and  a  confederation  is 
well  known  and  understood.  The  latter,  or  at  least  a  pure 
confederation,  is  a  mere  treaty  or  league  between  indepen- 
dent states,  and  binds  no  longer,  than  during  the  good 
pleasure  of  each.(y)  It  rests  forever  in  articles  of  com- 
pact, where  each  is,  or  may  be  the  supreme  judge  of  its 
own  rights  and  duties.  The  former  is  a  permanent  form 
of  government,  where  the  powers,  once  given,  are  irrevo- 
cable, and  cannot  be  resumed  or  withdrawn  at  pleasure. 
Whether  formed  by  a  single  people,  or  by  different  socie- 
ties of  people,  in  their  political  capacity,  a  constitution, 
though  originating  in  consent,  becomes,  when  ratified, 
obligatory,  as  a  fundamental  ordinance  or  law.(z)  The 
constitution  of  a  confederated  republic,  that  is,  of  a  na- 
tional republic  formed  of  several  states,  is,  or  at  least  may 
be,  not  less  an  irrevocable  form  of  goverment,  than  the 
constitution  of  a  state  formed  and  ratified  by  the  aggregate 
of  the  several  counties  of  the  state. (a)* 

"  §  353.  If  it  had  been  the  design  of  the  framers  of  the 
constitution  or  of  the  people,  who  ratified  it,  to  consider 
it  a  mere  confederation,  resting  on  treaty  stipulations,  it  is 
difficult  to  conceive,  that  the  appropriate  terms  should  not 
liave  been  found  in  it.     The  United  States  were  no  stran- 

and  established,  not  by  the  states  in  their  sovereign  capacities,  but 
enipliatically,  as  the  preamble  of  the  constitution  declares,  '  by  the 
people  of  the  United  States.'  "  To  the  same  effect  is  the  reason- 
ing of  Mr.  chief  justice  Marshall,  in  delivering  the  opinion  of  the 
court  in  M' Culloch  v.  Maryland,  (4  Wheaton,  316,  402  to  405,  al- 
ready cited.) 

(y)The  Federalist,  No.  9,  1.^  17,18,33;  Webster's  Speeches, 
1830;  Dane's  App.  §  2,  p.  11,  §  14,  p.  25,  &c. ;  Id.  §  10,  p.  21 ; 
Mr.  Martin's  letter,  3  Elliot,  53;  1  Tucker's  Black.  Conim. 
App.  146. 

(;)  1  Wilson's  Lectures,  417. 

(a)  See  The  Federalist,  No.  9;  id.  No.  15,  16;  Id.  No.  33  ;  Id. 
No.  39. 

[*  In  this  proposition  I  concur,  with  this  modification,  that  though 
irrevocable  by  the  ordinary  forms  of  government,  it  may  be  revo- 
cable by  the  exercise  of  rights  paramount  to  all  constitutions ;  but 
the  state  which  asserts  tiiese  rights,  does  so  on  its  own  responsi- 
bility, since  in  matters  between  states,  if  one  has  a  right  to  judge, 
others  have  also.  The  right  of  secession  can  only  be  revolution- 
ary.] 


CONSTITUTIONAL    LAW.  127 

gers  to  compacts  of  this  nature. (6)  They  had  subsisted 
to  a  limited  extent  before  the  revolution.  The  articles  of 
confederation,  though  in  some  few  respects  national,  were 
mainly  of  a  pure  federative  character,  and  were  treated  as 
stipulations  between  states  for  many  purposes  independent 
and  sovereign. (c)  And  yet  (as  has  been  already  seen)  it 
was  deemed  a  political  heresy  to  maintain,  that  under  it 
any  state  had  a  right  to  withdraw  from  it  at  pleasure,  and 
repeal  its  operation ;  and  that  a  party  to  the  compact  had 
a  right  to  revoke  that  compact. (rf)  The  only  places,  where 
the  terms,  confederation  or  compact,  are  found  in  the  con- 
stitution, apply  to  subjects  of  an  entirely  different  nature, 
and  manifestly  in  contradistinction  to  constitution.  Thus, 
in  the  tenth  section  of  the  first  article  it  is  declared,  that 
"  no  state  shall  enter  into  any  treaty,  alliance,  or  confe- 
deration;" — "no  state  shall,  without  the  consent  of  con- 
gress, &c.,  enter  into  any  agreement  or  cornpact  with  ano- 
ther state,  or  with  a  foreign  power."  Again,  in  the  sixth 
article  it  is  declared,  that  "  all  debts  contracted,  and  en- 
gagements entered  into,  before  the  adoption  of  this  consti- 
tution, shall  be  as  valid  against  the  United  States  under 
this  constitution,  as  under  the  confederation."  Again,  in 
the  tenth  amendment  it  is  declared,  that  "  the  powers  not 
delegated  by  the  constitution,  nor  prohibited  by  it  to  the 
states,  are  reserved  to  the  states  respectively,  or  to  the 
people."  A  contract  can  in  no  just  sense  be  called  a  de- 
legation of  powers.* 

(6)  New  England  Confederacy  of  1643 ;  3  Kent.  Comm.  190, 
IDl,  192;  Rawle  on  Const.  Introduct.  p.  24, 25.  In  the  ordinance 
of  1787,  for  the  government  of  the  territory  northwest  of  the  Ohio, 
certain  articles  were  expressly  declared  to  be  "  articles  of  compact 
between  the  original  states,  [i.  e.  the  United  States,]  and  the  people 
and  states  [states  infuturo,  for  none  were  then  in  being]  in  the  said 
territory."  But  to  guard  against  any  possible  difficulty,  it  was  de- 
clared, that  these  articles  should  "forever  remain  unalterable,  un- 
less by  common  consent."  So,  that  though  a  compact,  neither  party 
was  at  liberty  to  withdraw  from  it  at  its  pleasure,  or  to  absolve  it- 
self from  its  obligations.  Why  was  not  the  constitution  of  the 
United  States  declared  to  be  articles  of  compact,  if  that  was  the 
intention  of  the  framers  .•" 

(c)The  Federalist,  No.  15,  22,39,40,43;  Ogden  v.  Gibbons,9 
Wheaton'sR.  1,  187. 

(rf)  The  Federalist,  No.  22;  Id.  No.  43. 

[*  But  why  may  there  not  be  a  compact  amongst  several  for  a 
delegation  of  powers .'] 


128  LECTURES    ON 

"  354.  But  that,  whicli  would  seem  conclusive  on  tlie 
subject,  (as  has  been  already  stated,)  is  the  very  language 
of  the  constitution  itself,  declaring  it  to  be  a  supreme  fun- 
damental law,  and  to  be  of  judicial  obligation,  and  recog- 
nition in  the  administration  of  justice.  '  This  constitution,' 
says  the  sixth  article,  '  and  the  laws  of  the  United  State.*, 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of'  the  land;  and 
the  judges  in  every  state  shall  be  bound  thereby,  aiij/ 
thing  in  the  constitution  or  laws  of  any  state  to  the  con- 
trary notwithstanding.'  If  it  is  the  supreme  law,  how  can 
the  people  of  any  state,  either  by  any  form  of  its  own  con- 
stitution, or  laws,  or  other  proceedings,  repeal,  or  abro- 
gate, or  suspend  it  ? 

"  §  355.  But,  if  the  language  of  the  constitution  were 
less  explicit  and  irresistible,  no  other  inference  could  be 
correctly  deduced  from  a  view  of  the  nature  and  objects  of 
the  instrument.  The  design  is  to  establish  a  form  of  go- 
vernment. This,  of  itself,  imports  legal  obligation,  per- 
manence, and  uncontrollability  by  any,  but  the  authorities 
authorized  to  alter,  or  abolish  it.  The  object  was  to  se- 
cure the  blessings  of  liberty  to  the  people,  and  to  their 
posterity.  The  avowed  intention  was  to  supercede  the  old 
confederation,  and  substitute  in  its  place  a  new  form  of 
government.  We  have  seen,  that  the  inefficiency  of  the 
old  confederation  forced  the  states  to  surrender  the  league 
then  existing,  and  to  establish  a  national  constitution. (f) 
The  convention  also,  which  framed  the  constitution,  de- 
clared this  in  the  letter  accompanying  it.  '  It  is  obviously 
impracticable  in  the  federal  government  of  these  states,' 

(c)  Tlic  very  first  resolution  adopted  by  the  convention  (six  states 
to  two  states)  was  in  the  following  words:  "Resolved,  that  it  is 
the  opinion  of  tiiis  committee,  that  a  national  government  ought  to 
be  established  of  a  supreme  legislative,  judiciary,  and  e^'^cutive  ;"* 
plainly  shewing,  that  it  was  a  national  government,  not  a  compact, 
which  they  were  about  to  establish  ;  a  supreme  legislative,  judi- 
ciary, and  executive,  and  not  a  mere  treaty  for  the  exercise  of  de- 
pendent powers  during  the  good  pleasure  of  all  the  contracting 
parties.! 

♦Journal  of  Convention,  p.  83,  134,  139,  207;  4  Elliott's  Debates,  49.  See 
also  2Pitkin'.s  History, 232. 

[f  I  earnestly  protect  asainst  surh  strong  inferences  from  a  mere  incipient  pro- 
position, which  was  never  carried  out  in  its  spirit  orprinciples.] 


CONSTITUTIONAL    LAW.  129 

says  that  letter,  '  to  secure  all  rights  of  independent  sove- 
reignty to  each,  and  yet  provide  for  the  interest  and  safety 
of  all.  Individuals  entering  into  society  must  give  up  a 
share  of  liberty  to  preserve  the  rest.'(y ) — '  In  all  our  delibe- 
rations on  this  subject,  we  kept  steadily  in  our  view  that, 
which  appeared  to  us  the  greatest  interest  of  every  true 
American,  the  consolidation  of  our  Union,  in  which  is  in- 
volved our  prosperity,  felicity,  safety,  perhaps  our  national 
existence.'  Could  this  be  attained  consistently  with  the 
notion  of  an  existing  treaty  or  confederacy,  which  each 
at  its  pleasure  was  at  liberty  to  dissolve  ?(§^) 

"  §  356.  It  is  also  historically  known,  that  one  of  the 
objections  taken  by  the  opponents  of  the  constitution  was, 
*  that  it  is  not  a  confederation  of  the  states  but  a  govern- 
ment of  individuals. '(A)  It  was,  nevertheless,  in  the  so- 
lemn instruments  of  ratification  by  the  people  of  the  seve- 
ral states,  assented  to,  as  a  constitution.*  The  language 
of  those  instruments  uniformly  is,  '  We,  &lc.  do  assent  to, 
and  ratify  the  said  constitution.' (i)  The  forms  of  the 
convention  of  Massachusetts  and  New  Hampshire,  are 
somewhat  peculiar  in  their  language.  '  The  convention, 
&c.  acknowledging,  with  grateful  hearts,  the  goodness  of 
the  Supreme  Ruler  of  the  Universe  in  affording  the  people 
of  the  United  States,  in  the  course  of  his  providence,  an 

(/)  Journal  of  Convention,  p.  367,  368. 

(^)  The  language  of  the  supreme  court  in  Gibbons  v.  Ogden,  (9 
Wheat.  R.  1,  187,)  is  very  expressive  on  this  subject ; 

"  As  preliminary  to  the  very  able  discussions  of  the  constitution 
which  we  have  heard  from  the  bar,  and  as  having  some  influence 
on  its  construction,  reference  has  been  made  to  the  political  situa- 
tion of  these  states,  anterior  to  its  formation.  It  has  been  said 
that  they  were  sovereign,  were  completely  independent,  and  were 
connected  with  each  other  only  by  a  league.  This  is  true.  But 
when  these  allied  sovereigns  converted  their  league  into  a  govern- 
ment, when  they  converted  their  congress  of  ambassadors,  depu- 
ted to  deliberate  on  their  common  concerns,  and  to  recommend 
measures  of  general  utility,  into  a  legislature,  empowered  to  enact 
laws  on  the  most  interesting  subjects,  the  whole  character,  in  which 
the  states  appear,  underwent  a  change,  the  extent  of  which  must 
be  determined  by  a  fair  consideration  of  the  instrument,  by  which 
that  change  was  effected." 

(h)  The  Federalist,  No.  38,  p.  247;  Id.  No.  39,  p.  256. 

(i)  See  the  forms  in  the  Journals  of  the  Convention,  «fcc.  (1819), 
p.  390  to  465. 

[*  See  post.] 


130  LECTURES    ON 

opportunity,  deliberately  and  peaceably,  without  force  or 
surprise,  of  entering  into  an  explicit  and  solemn  compact 
with  each  other,  bi/  assenting  to  and  ratifying  a  new  con- 
stitution, &LC.  do  assent  to,  aird  ratify  the  said  constitu- 
tion.'(/;)  And  although  many  declarations  of  rights, 
many  propositions  of  amendments,  and  many  protestations 
of  reserved  powers  are  to  be  found  accompanying  the  ra- 
tifications of  the  various  conventions,  sufficiently  evincive 
of  the  extreme  caution  and  jealousy  of  those  bodies,  and 
of  the  people  at  large,  it  is  remarkable,  that  there  is  no- 
where to  be  found  the  slightest  allusion  to  the  instrument, 
as  a  confederation  or  compact  of  states  in  their  sovereign 
capacity,  and  no  reservation  of  any  right,  on  the  part  of 
any  state,  to  dissolve  its  connexion,  or  to  abrogate  its  as- 
sent, or  to  suspend  the  operations  of  the  constitution,  as  to 
itself  On  the  contrary,  that  of  Virginia,  which  speaks 
most  pointedly  to  the  topic,  merely  declares,  '  that  the 
powers  granted  under  the  constitution,  being  derived  from 
the  people  of  the  United  States,  may  be  resumed  by  thetn 
[not  by  any  one  of  the  states]  whenever  the  same  shall  be 
perverted  to  their  injury  or  oppression.' (/) 

"  §  357.  So  that  there  is  very  strong  negative  testi- 
mony against  the  notion  of  its  being  a  compact  or  confede- 
ration, of  the  nature  of  which  we  have  spoken,  founded 
upon  the  known  history  of  the  times,  and  the  acts  of  rati- 
fication, as  well  as  upon  the  antecedent  articles  of  confede- 
ration. The  latter  purported  on  their  face  to  be  a  mere 
confederacy.  The  language  of  the  third  article  was, 
'  The  said  states  hereby  severally  enter  into  a  firm  league 
of  friendship  with  each  other  for  their  common  defence, 
&.C.  binding  themselves  to  assist  each  other.'  And  the 
ratification  was  by  delegates  of  the  state  legislatures,  who 
solemnly  plighted  and  engaged  the  faith  of  their  respec- 
tive constituents,  that  they  should  abide  by  the  determina- 
tion of  the  United  States  in  congress  assemble  '*  on  all 
questions,  which,  by  the  said  confederation,  are  submitted 
to  them  ;  and  that  the  articles  thereof  should  be  inviolably 
observed  by  the  states  they  respectively  represented. (;n) 

(k)  Journals  of  the  Convention,  &c.  (1819),  p.  401,  402,  412. 

(I)  Id.  p.  41G. — Of  the  right  of  a  majority  of  the  whole  people 
to  change  their  constitution,  at  will,  there  is  no  doubt.  See  1  Wil- 
son's Lectures,  418  ;  1  Tuck.  Black.  Comni.  165. 

(m)  Articles  of  Confederation,  1781,  art.  13. 


CONSTITUTIONAL    LAW.  131 

"  §  35S.  It  is  not  unworthy  of  observation,  that  in  the 
debates  of  the  various  conventions  called  to  examine  and 
ratify  the  constitution,  this  subject  did  not  pass  without 
discussion.  The  opponents,  on  many  occasions,  pressed 
the  objection,  that  it  was  a  consolidated  government,  and 
contrasted  it  with  the  confederation. («)  None  of  its  ad- 
vocates pretended  to  deny,*  that  its  design  was  to  estab- 
lish a  national  government,  as  contradistinguished  from  a 
mere  league  or  treaty,  however  they  might  oppose  the  sug- 
gestions, that  it  was  a  consolidation  of  the  states.(o)  In 
the  North  Carolina  debates,  one  of  the  members  laid  it 
down,  as  a  fundamental  principle  of  every  safe  and  free 
government,  that  '  a  government  is  a  compact  between  the 
rulers  and  the  people.'  This  was  most  strenuously  denied 
on  the  other  side  by  gentlemen  of  great  eminence.  They 
said,  '  A  compact  cannot  be  annulled,  but  by  the  consent 
of  both  parties.  Therefore,  unless  the  rulers  are  guilty  of 
oppression,  the  people,  on  the  principles  of  a  compact, 
have  no  right  to  new-model  their  government.  This  is  held 
to  be  the  principle  of  some  monarchical  governments  in 
Europe.  Our  government  is  founded  on  much  nobler  prin- 
ciples. The  people  are  known  with  certainty  to  have  ori- 
ginated it  themselves.  Those  in  power  are  their  servants 
and  agents.  And  the  people  without  their  consent,  may 
new-model  the  government,  whenever  they  think  proper, 
not  merely  because  it  is  oppressively  exercised,  but  because 

(n)  I  do  not  say,  that  the  manner  of  stating  the  objection  was 
just,  but  the  fact  abundantly  appears  in  the  printed  debates.  For 
instance,  in  the  Virginia  debates,  (2  Elliot's  Deb.  47,)  Mr.  Henry 
said,  "  That  this  is  a  consolidated  government  is  demonstrably 
clear." — "The  language  [is]  'We,  the  people,'  instead  of  '  We, 
the  states.'  States  are  the  characteristics  and  soul  of  a  confedera- 
tion. If  the  states  be  not  the  agents  of  this  compact,  it  must  be 
one  great  consolidated  national  government  of  the  people  of  all  the 
states."  The  like  suggestion  will  be  found  in  various  places  in 
Mr.  Elliot's  Debates  in  other  states.  See  1  Elliot's  Debates,  91, 
92,  110.  See  also  3  Amer.  Museum,  422;  2  Amer.  Museum,  540, 
546;  Mr.  Martin's  letter,  4  Elliot's  Debates,  p.  53. 

(o)  3  Elliot's  Debates,  145,257,  291  ;  The  Federalist,  No.  32,  38, 
39,  44,  45  ;  3  Amer.  Museum,  422,  424. t 

[*  This  is  not  correct.     See  post.] 

[t  The  Federalist  does  not  pretend  to  consider  the  government  as  consolidated, 
but  the  contrary.     See  the  passages  cited.     See  also  1  Story  334.] 


132  LECTURES    ON 

they  think  another  form  will  be  more  conducive  to  their 
welfare.'(p) 

'*  359.  Nor  should  it  be  omitted,  that  in  the  most  elabo- 
rate expositions  of  the  constitution  by  its  friends,  its  cha- 
racter, as  a  permanent  form  of  government,  as  a  funda- 
mental law,  as  a  supreme  rule,  which  no  state  was  at  li- 
berty to  disregard,  suspend  or  annul,  was  constantly  ad- 
mitted, and  insisted  on,  as  one  of  the  strongest  reasons, 
why  it  should  be  adopted  in  lieu  of  the  confederation. (g) 
It  is  matter  of  surprise,  therefore,  that  a  learned  commen- 
tator should  have  admitted  the  right  of  any  state,  or  of  the 
people  of  any  state,  without  the  consent  of  the  rest,  to  se- 
cede from  the  Union  at  its  own  pleasure. (r)  The  people 
of  the  United  States  have  a  right  to  abolish,  or  alter  the 
constitution  of  the  United  States  ;*  but  that  the  people  of  a 

(p)  Mr.  Iredell,  3  Elliot's  Debates,  24,  25  ;  Id.  200,  Mr.  M'Clnre, 
Id.  25;  Mr.  Spencer,  Id.  26,  27;  Id.  139.  See  also  3  Elliot's  De- 
bates, 156.  See  also  Chisltolm  v.  Georgia,  3  Dall.419;  2  (con- 
densed Rep.  635,  667,  668.  See  also  in  Penn.  Debates,  Mr.  Wil- 
son's denial,  that  the  constitution  was  a  compact ;  3  Elliot's  De- 
bates, 286,  287.  See  also  M'Culloch  v.  Maryland,  4  Wheaton,  316, 
404. 

{q)  The  Federalist,  No.  15  to  20,  38,  39,  44;  North  Amer.  Re- 
view, Oct.  1827,  p.  265,  266. 

(r)  Rawle  on  the  Constitution,  ch.  32,  p,  295,  296,  297,  302,  305. 

*[If  we  understand,  as  judge  Story  does,  "the  people  of  the 
United  States"  to  mean  the  people  considered  as  one  whole,  the 
proposition  here  laid  down,  is  unhesitatingly  denied.  If  all  the 
people  in  six  of  tlie  largest  states  were  to  concur,  they  would  have 
no  right  to  alter  or  abolish  the  constitution,  though  they  would 
constitute  a  majority  of  the  Union.  For  the  compact  can  only  be 
dissolved  by  the  states,  who  made  it,  upon  the  clear  principle, 
'■'■  dissolvitur  eo  rnodo  quolegutnr.''  Nor  could  it  be  dissolved  by 
any  one  or  more  states,  e.\ce|)t  upon  the  principles  of  revolution, 
which  are  above  all  law.  It  enters  into  no  part  of  our  system, 
that  because  the  constitution  is  a  compact,  any  party  to  it  has  a 
right,  to  dissolve  it,  if  it  deems  it  to  have  been  broken.  This  mat- 
ter will  be  more  fully  developed  hereafter. 

We  scarcely  need  to  express  our  total  dissent  to  the  views  of 
Mr.  Dane,  presented  in  this  passage.  We  do  not  recognize  him  as 
authoritij,  and  still  less  do  we  defer  to  his  very  unsatisfactory  rea- 
soning. We  prefer  rather  to  adopt  the  remark  of  the  Federalist, 
which  judge  Story  (with  what  consistency  I  do  not  perceive)  dis- 
tinctly adopts:  "that  the  constitution  was  the  result  of  the  unani- 
mous assent  of  the  several  states,  that  are  parties  to  it."] 


CONSTITUTIONAL    LAW.  133 

single  state  have  such  a  right,  is  a  proposition  requiring 
some  reasoning  beyond  the  suggestion,  that  it  is  implied 
in  the  principles,  on  which  our  political  systems  are  found- 
ed.(n)  It  seems,  indeed,  to  have  its  origin  in  the  notion 
of  all  governments  being  founded  in  compact,  and  there- 
fore liable  to  be  dissolved  by  the  parties,  or  either  of  them  ; 
a  notion,  which  it  has  been  our  purpose  to  question,  at 
least  in  the  sense,  to  which  the  objection  applies. 

"  §  360.  To  us  the  doctrine  of  Mr.  Dane  appears  far  bet- 
ter founded,  that  'the  constitution  of  the  United  States  is 
not  a  compact  or  contract  agreed  to  by  two  or  more  par- 
ties, to  be  construed  by  each  for  itself,  and  here  to  stop  for 
the  want  of  a  common  arbiter  to  revise  the  construction 
of  each  party  or  state.  But  that  it  is,  as  the  people  have 
named  and  called  it,  truly  a  constitution ;  and  they  pro- 
perly said,  '  We,  the  people  of  the  United  States,  do  or- 
dain and  establish  this  constitution,'  and  not,  we,  the  peo- 
ple of  each  state. '(o)  And  this  exposition  has  been  sus- 
tained by  opinions  of  some  of  our  most  eminent  statesmen 

(n)  Dane's  App.  §  59,  60,  p.  69,  71. 

(o)  Mr.  (afterwards  Mr.  justice)  Wilson,  who  was  a  member  of 
the  federal  convention,  uses,  in  the  Pennsylvania  Debates,  the  fol- 
lowing language:  "We  were  told,  t^c.  that  the  convention  no 
doubt  thought  they  were  forming  a  compact  or  contract  of  the 
greatest  importance.  It  was  matter  of  surprise  to  see  the  great 
leading  principles  of  this  system  still  so  very  much  misunderstood. 
I  cannot  answer  for  what  every  member  thought;  but  I  believe  it 
cannot  be  said,  they  thought  they  were  making  a  contract,  because 
I  cannot  discover  the  least  trace  of  a  compact  in  that  system. 
There  can  he  no  compact,  unless  there  are  more  parties  than  one.  It 
is  a  new  doctrine,  that  one  can  make  a  compact  with  himself.  '  The 
convention  were  forming  contracts  !  witli  whom  ?  I  know  no  bar- 
gains, that  were  there  made  ;  I  am  unable  to  conceive  who  the 
parties  could  be.  The  state  governments  make  a  bargain  with 
each  other.  That  is  the  doctrine,  that  is  endeavoured  to  be  estab- 
lished by  gentlemen  in  the  opposition  ;  their  state  sovereignties 
wish  to  be  represented.  But  far  other  were  the  ideas  of  the  con- 
vention. This  is  not  a  govcrnvient  founded  upon  compact.  It  is 
founded  upon  the  power  of  the  people.  They  express  in  their  name 
and  their  authority,  we,  the  people,  do  ordain  and  establish,'  &c. 
3  Elliot's  Debates,  286,  287.  He  adds,  (Id.  288,)  "  This  system  is 
not  a  compact  or  contract.  The  system  tells  you,  what  it  is;  it  is 
an  ordinance  and  establishment  of  the  people."  9  Dane's  Abridg. 
ch.  187,  art.  20,  §  15,  p.  589,  590;  Dane's  App.  §  10,  p.  21,  §  59, 
p.  69. 

12 


134  LECTURES    ON 

and  judges.(/?)  It  was  truly  remarked  by  the  Federal- 
ist,(g^)  that  the  constitution  was  the  result  neither  from  the 
decision  of  a  majority  of  the  people  of  the  Union,  nor 
from  that  of  a  majority  of  the  states.  It  resulted  from  the 
unanimous  assent  of  the  several  states  that  are  parties  to 
it,  differing  no  otherwise  from  their  ordinary  assent,  than 
its  being  expressed,  not  by  the  legislative  authority  but  by 
that  of  the  people  themselves. 

"§  361.  But  if  the  constitution  could  in  the  sense,  to 
which  we  have  alluded,  be  deemed  a  compact,  between 
whom  is  it  to  be  deemed  a  contract?  We  have  already 
seen,  that  the  learned  commentator  on  Blackstone,  deems 
it  a  compact  with  several  aspects,  and  first  between  the 
states,  (as  contradistinguished  from  the  people  of  the 
states,)  by  which  the  several  states  have  bound  themselves 
to  each  other,  and  to  the  federal  government.(r)  The  Vir- 
ginia resolutions  of  1798,  assert,  that  '  Virginia  views  the 
powers  of  the  federal  government,  as  resulting  from  the 
compact,  to  ivhich  the  states  arc  parties.'  This  declaration 
was,  at  the  time,  matter  of  much  debate  and  difference  of 
opinion  among  the  ablest  representatives  in  the  legislature. 
But  when  it  was  subsequently  expounded  by  Mr.  Madison 
in  the  celebrated  report  of  January  1800,  after  admitting, 
that  the  term  '  states'  is  used  in  different  senses,  and  among 
others,  that  it  sometimes  means  the  people  composing  apoli- 
tical society  in  their  highest  sovereign  capacity,  he  considers 
the  resolution  unobjectionable,  at  least  in  this  last  sense,  be- 
cause in  that  sense  the  constitution  was  submitted  to  the 
*  states ;'  in  that  sense  the  '  states'  ratified  it ;  and  in  that 
sense  the  states  are  consequently  parties  to  the  compact, 
from  which  the  powers  of  the  federal  government  result. (.s) 
And  that  is  the  sense,  in  which  he  considers  the  states  par- 
ties in  his  still  later  and  more  deliberate  examinations.(<) 

(p)See  Ware  v.  Hylton,  3  Ball.  199;  1  Cond.  Rep.  99,  112; 
Chisholm  V.  Georgia,  3  Dall.  419;  2  Cond.  R.  668,  671;  Elliot's 
Debates,  72;  2  Elliot's  Debates,  47;  Webster.'ii  Speeches,  p.  410; 
The  Federalist,  No.  22,  33,  39;  2  Anier.  Museum,  536,  546;  Vir- 
ginia Debates  in  1798,  on  the  Alien  Laws,  p.  Ill,  136,  13d,  140; 
North  Amer.  Rev.  Oct.  1830,  p.  437,  444. 

(?)  No.  39. 

(r)  1  Tuck.  Black.  Comm.  169;  Hayne'.s  speech  in  the  senate, 
in  1830;  4  Elliot's  Debates,  315,  316. 

(s)  Resolutions  of  18U0,  p.  5,  6. 

(t)  North  American  Review,  Oct.  1830,  p.  537,  544. 


CONSTITUTIONAL    LAW.  135 

"  §  362.  This  view  of  the  subject  is,  however,  wholly  at 
variance*  with  that,  on  which  we  are  commenting ;  and 
which,  having  no  foundation  in  the  words  of  the  constitu- 
tion, is  altogether  a  gratuitous  assumption,  and  therefore 
inadmissible.  It  is  no  more  true,  that  a  state  is  a  party  to 
the  constitution,  as  such,  because  it  was  framed  by  dele- 
gates chosen  by  the  states,  and  submitted  by  the  legisla- 
tures thereof  to  the  people  of  the  states  for  ratification, 
and  that  the  states  are  necessary  agents  to  give  effect  to 
some  of  its  provisions,  than  that  for  the  same  reasons  the 
governor,  or  senate,  or  house  of  representatives,  or  judges, 
either  of  a  state  or  of  the  United  States,  are  parties  there- 
to.    No  state,  as  such,  that  is,  the  body  politic, t  as  it  was 

[*  It  is  singular  that  the  commentator  does  not  advert  to  the  ob- 
vious principle  that  it  is  not  the  legislature  but  the  people  of  the 
state  who  constitute  the  states ;  and  hence,  that  to  constitute  a 
compact  between  the  states,  the  assent  or  act  of  the  respective  le- 
gislatures was  not  necessary,  but  the  assent  or  act  of  the  people 
themselves  in  the  respective  states,  constituting  distinct  bodies  po- 
litic from  each  other.  The  legislatures  under  our  system  could  not 
have  adopted  the  constitution.  Acting  under  limited  powers,  they 
had  no  right  to  enter  into  any  compact  transferring  part  of  their 
powers,  and  portions  of  the  state  sovereignty,  to  others.  Such  an 
act  was  not  within  the  charter  which  created  them.  It  was  there- 
fore necessary  that  the  people  of  the  state,  who  constitute  the  so- 
vereignty, should  ratify  the  instrument.  Tfieii  had  that  power,  and 
when  they  exerted  it,  it  was  an  exercise  of  state  sovereignty ;  and 
so  the  ratification  of  the  constitution  by  them,  in  their  respective 
conventions,  was  an  act  of  state  sorereignty,  by  which  each  state 
contracted  with  every  other  to  establish  and  maintain  the  stipula- 
ted form  of  government.] 

[  t  Here  the  learned  author  clearly  means  the  '■'■legislatures ;'' 
and  what  he  says  of  their  want  of  power  to  form  a  constitution,  is 
strictly  true,  and  well  expressed.  But  he  admits  that  "the  people, 
in  their  original,  sovereign  capacity,  had  a  right  to  change  their 
form  of  government."  What  people  .'  Not  the  pco/?/c  of  the  whole 
confederacy,  as  one, — for  there  was  none  such ;  but  the  people  of 
each  of  the  confederate  states,  who  were  then,  at  least,  sovereign 
and  independent.  Judge  Story  feels  the  force  of  the  distinction, 
when  he  says  in  page  330,  "  And  the  states  never,  in  fact,  did  in 
their  political  capacity,  {as  contradistinguished  from  the  people 
THEREOF,)  ratify  the  constitution."  That  is  to  say,  the  legisla- 
tures did  not,  though  he  admits  the  people  thereof  (that  is,  of  each 
state)  did.  And  this  is  all  we  contend  for:  believing  that  the  rati- 
fication by  the  people  of  each  state,  in  their  conventions,  was  an 
act  of  separate  state  sovereignty,  which  made  the  constitution  a 
compact  between  states,  and  not  a  national  or  consolidated  govern- 
ment."] 


136  LECTURES    ON 

actually  organized,  had  any  power  to  establish  a  contract 
for  the  establishment  of  any  new  government  over  the  peo- 
ple thereof,  or  to  delegate  the  powers  of  government  in 
whole,  or  in  part  to  any  other  sovereignty.  The  state  go- 
vernments were  framed  by  the  people  to  administer  the 
state  constitutions,  such  as  they  were,  and  not  to  transfer 
the  administration  thereof  to  any  other  persons,  or  sove- 
reignty. They  had  no  authority  to  enter  into  any  compact 
or  contract  for  such  a  purpose.  It  is  no  where  given,  or 
implied  in  the  state  constitutions;  and  consequently,  if  ac- 
tually entered  into,  (as  it  was  not,)  would  have  had  no  ob- 
ligatory force.  The  people,  and  the  people  only,  in  their 
original  sovereign  capacity,  had  a  right  to  change  their 
form  of  government,  to  enter  into  a  compact,  and  to  trans- 
fer any  sovereignty  to  the  national  government. (?/)  And 
the  states  never,  in  fact,  did  in  their  political  capacity,  as 
contradistinguished  from  the  people  thereof,  ratify  the  con- 
stitution. Tliey  were  not  called  upon  to  do  it  by  congress ; 
and  were  not  coutemplated,  as  essential  to  give  validity  to 
it.(r) 

(7i)4  Wheat.  404. 

(v)  The  Federalist,  No.  39. — In  confirmation  of  this  view,  we 
may  quote  the  reasoning  of  the  supreme  court  in  the  case  of 
M' Cullock  V.  Maryland.,  (4  Wheaton's  R.  316,)  in  answer  to  the 
very  argument.  "  The  powers  of  the  general  government,  it  lias 
been  said,  are  delegated  by  the  states,  who  alone  are  truly  sove- 
reign ;  and  must  be  exercised  in  subordination  to  the  states,  who 
alone  possess  supremo  dominion. 

"It  would  be  difficult  to  sustain  this  proposition.  The  conven- 
tion, which  framed  tlio  constitution,  was  indeed  elected  by  the 
state  legislatures.  But  the  instrument,  when  it  came  from  their 
hands,  was  a  mere  proposal,  without  obligation,  or  pretensions  to 
it.  It  was  reported  to  the  then  existing  congress  of  the  United 
States,  with  a  request,  that  it  might  'be  submitted  to  a  convention 
of  delegates,  chosen  in  each  state  by  the  people  thereof,  under  the 
recommendation  of  its  legislature,  for  their  assent  and  ratification.' 
This  mode  of  proceeding  was  adopted;  and  by  the  convention,  by 
congress,  and  by  the  state  legislatures,  the  instrument  was  submit- 
ted to  the  people.  They  acted  upon  it  in  the  only  manner  in 
which  they  can  act  safely,  effectively,  and  '.yisely,  on  such  a  sub- 
ject, by  assembling  in  convention.  It  is  true,  they  assembled  in 
their  several  states — and  where  else  should  they  have  assembled  ?* 

[*This  is  an  evasion  unworthy  of  tlie  chief  justice.  The  argument  of  his 
adversaries  did  not  rest  upon  the  plnce  where  the  conventions  met,  but  upon  ihe 
convention  of  each  state  representing  its  own  state  alone  as  a  sovereign  stat», 
and  not  as  a  fragment  of  the  aggregate  nation.] 


CONSTITUTIONAL    LAW.  137 

"  §  363.  The  doctrine,  then,  that  the  states  are  parties 
is  a  gratuitous  assumption.     In  the  language  of  a  most  dis- 

No  political  dreamer  was  ever  wild  enough  to  think  of  breaking 
down  the  lines,  which  separate  the  states,  and  of  compounding  the 
American  people  into  one  common  mass.*  Of  consequence,  when 
they  act,  they  act  in  their  states.  But  the  measures  they  adopt  do 
not,  on  that  account,  cease  to  be  the  measures  of  the  people  them- 
selves, or  become  the  measures  of  the  state  governments. 

"  From  these  conventions  the  constitution  derives  its  whole  au- 
thority. The  government  proceeds  directly  from  the  people;!  is 
'  ordained  and  established'  in  the  name  of  the  people ;  and  is  de- 
clared to  be  ordained,  '  in  order  to  form  a  more  perfect  union,  es- 
tablish justice,  ensure  domestic  tranquillity,  and  secure  the  bles- 
sings of  liberty  to  themselves  and  to  their  posterity.'  The  assent 
of  the  states,  in  their  sovereign  capacity,!  is  implied  in  calling  a 
convention,  and  thus  submitting  that  instrument  to  the  people. 
But  the  people  were  at  perfect  liberty  to  accept  or  reject  it;  and 
their  act  was  final.  It  required  not  the  affirmance,  and  could  not 
be  negatived  by  the  state  governments.  The  constitution,  when 
thus  adopted,  was  of  complete  obligation,  and  bound  the  state  so- 
vereignties. 

"  It  has  been  said,  that  the  people  had  already  surrendered  all 
their  powers  to  the  state  sovereignties,  and  had  nothing  more  to 
give.  But  surely,  tlie  question,  whether  they  may  resume  and 
modify  the  powers  granted  to  government,  does  not  remain  to  be 
settled  in  this  country.  Much  more  might  the  legitimacy  of  the 
general  government  be  doubted,  had  it  been  created  by  the  states. § 
The  powers  delegated  to  the  state  sovereignties  were  to  be  exer- 
cised by  themselves,  not  by  a  distinct  and  independent  sovereign- 
ty, created  by  themselves.  To  the  formation  of  a  league,  such  as 
was  the  confederation,  the  state  sovereignties  were  certainly  com- 
petent. But  when,  'in  order  to  form  a  more  perfect  union,'  it 
was  deemed  necessary  to  change  this  alliance  into  an  effective  go- 
vernment, possessing  great  and  sovereign  powers,  and  acting  di- 
rectly on  the  people,  the  necessity  of  referring  it  to  the  people,  and 
of  deriving  its  powers  directly  from  them,  was  felt  and  acknow- 
ledged by  all. 

[*  What  would  the  chief  justice  have  thought  of  the  dreams  of  judge  Stoiy, 
Mr.  Webster,  and  Mr.  Dane,  whose  favourite  hypothesis  is  "the  compounding 
the  .^tnerican  people  into  one  common  mass."    fSee  $  363.] 

[t  Wliat  people  .'  The  people  of  the  separate,  free  and  independent  states  of 
the  confederacy  ;  each  acting  for  itself:  each  having  a  power  of  absolute  re- 
jection whether  ratified  by  others  or  not.] 

[|  The  calling  the  conventions  was  an  act  of  the  legislatures  and  not  the 
act  of  the  states  in  their  sucereiirn  capacity  as  to  this  matter.  The  conventions, 
quoad  hoc,  represented  the  state  sovereignties.  Throughout  this  whole  passage, 
tlie  chief  justice  speaks  of  the  leirUlatures  as  the  state  sovereigns,  whereas,  in 
truth,  they  had  no  power  to  bind  the  people  by  their  assent,  for  the  reasons  so 
forcibly  given  by  judge  Storj'  in  ^  3t>2.] 

[§  If  not  created  by  the  states  (I  do  not  mean  the  legislatures  of  the  slates) 
why  on  the  question  of  acceptance  were  not  the  votes  of  all  the  states  aggre- 
gated to  ascertain  the  majority  .'  Why  could  each  state  reject .'  Why  was  lit- 
tle Delaware  made  equal  with  Virginia.' 

12* 


138  LECTURES    ON 

tinguished  statesman, (?t')  '  the  constitution  itself  in  its  very 
front  refutes  that.  It  declares  that  it  is  ordained  and  es- 
tablished by  i/tt  PEOPLE  of  the  United  States.  So  far  from 
saying  that  it  is  established  by  the  governments  of  the  se- 
veral states,  it  does  not  even  say,  that  it  is  established  by 
the  people  of  the  several  states.  But  it  pronounces  that  it 
is  established  by  the  people  of  the  United  States  in  the 
aggregate.*  Doubtless  the  people  of  the  several  states, 
taken  collectively,  constitute  the  people  of  the  United 
States.  But  it  is  in  this  their  collective  capacity,  it  is  as 
all  the  people  of  the  United  States,  that  they  establish  the 
constitution. '(i) 

"§  364.  But  if  it  were  admitted,  that  the  constitution 
is  a  compact  between  the  states,  '  the  inferences  deduced 
from  it,'   as  has  been  justly  observed  by  the  same  states- 

"Tlie  government  of  the  Union,  then,  (whatever  may  be  the  in- 
fluence of  this  fact  on  the  case,)  is,  emphatically,  and  truly,  a  go- 
vernment of  the  people.  In  form  and  in  substance  it  emanates 
from  them.  Its  powers  are  granted  by  them,  and  are  to  be  exer- 
cised directly  on  them,  and  for  their  benefit. 

"  This  government  is  acknowledged  by  all  to  be  one  of  enumerated 
powers.  The  principle,  that  it  can  exercise  only  the  powers  grant- 
ed to  it,  would  seem  too  apparent  to  have  required  to  be  enforced 
by  all  those  arguments,  which  its  enlightened  friends,  while  it  was 
depending  before  the  people,  found  it  nccessar}'  to  urge.  That  prin- 
ciple is  now  universally  admitted.  But  the  question  respecting  the 
extent  of  tlie  powers  actually  granted,  is  perpetually  arising,  and 
will  probablv  continue  to  arise,  as  long  as  our  system  shall  exist." 

(?r)  Webster's  Speeches,  1830,  p.  4^1  ;  4  Elliot's  Debates,  326. 

(x)  Mr.  Dane  reasons  to  the  same  effect,  though  it  is  obvious, 
that  he  could  not,  at  the  time,  have  had  any  knowledge  of  the 
views  of  Mr.  Webster.*  He  adds,  "  If  a  contract,  when  and  how 
did  the  Union  become  a  party  to  it?  If  a  cmpact,  why  is  it  never 
so  denominated,  but  often  and  invariably  in  the  instrument  itself, 
and  in  its  amendments,  styled,  ' //i/5  constitution  .''  And  if  a  con- 
tract, why  did  the  framers  and  people  call  it  the  supreme  law  .''t  In 
Martin  v.  Hunter,  (1  Wheat.  R.  304,  324,)  the  supreme  court  ex- 
pressly declared,  that  "  the  constitution  was  ordained  and  establish- 
ed," not  by  the  states  in  their  sovereign  capacity,  but  emphatical- 
ly, as  tlie  preamble  of  the  constitution  declares,  "  by  the  people  of 
the  United  States." 

[*Can  we  suppress  our  wonder  at  the  distinct  avowu]  of  sucli  an 
opinion  by  such  a  man  !  !  I  This  is  the  jcild  political  dream  which 
the  chief  justice  himself  conceived  to  be  impossible.  It  compounds 
the  American  people  into  one  common  m-ass-l 

»  9  Dane's  Abridg.  cli.  189,  art.  20,  $  15,  p.  589,  590  ;  Dane's  App.  40,  4] ,  42. 
t9  Dane's  Abridg.  590. 


CONSTITUTIONAL    LAW. 


139 


man,(3/)  are  warranted  by  no  just  reason.  Because,  if 
the  constitution  be  a  compact  between  the  states,  still  that 
constitution  or  that  compact  has  established  a  government 
with  certain  powers ;  and  whether  it  be  one  of  these  pow- 
ers, that  it  shall  construe  and  interpret  for  itself  the  terms 
of  the  compact  in  doubtful  cases,  can  only  be  decided  by 
looking  to  the  compact,  and  enquiring,  what  provisions  it 
contains  on  that  point.  Without  any  inconsistency  with 
natural  reason,  the  government  even  thus  created  might  be 
trusted  with  this  power  of  construction.  The  extent  of  its 
powers  must,  therefore,  be  sought  in  the  instrument  itself 
'  If  the  constitution  were  the  mere  creation  of  the  state 
governments,  it  might  be  modified,  interpreted,  or  con- 
strued according  to  their  pleasure.  But  even  in  that  case, 
it  would  be  necessary,  that  they  should  agree.  One  alone 
could  not  interpret  it  conclusively.  One  alone  could  not 
construe  it.  One  alone  could  not  modify  it.' — '  If  all  the 
states  are  parties  to  it,  one  alone  can  have  no  right  to  fix 
upon  it  her  own  peculiar  construction. '(s)* 

"  §  365.  Then,  is  it  a  compact  between  the  people  of 
the  several  states,  each  contracting  with  all  the  people  of 
the  other  states  ?(r/)     It  may  be  admitted,  as  was  the  early 

(y)  Webster's  Speeches,  429;  4  Elliot's  Debates,  324. 
(:)  Even  under  the  confederation,  whicli  was  confessedly,  in 
many  respects,  a  mere  league  or  treaty,  though  in  other  respects 
national,  congress  unanimously  resolved,  that  it  was  not  within 
the  competency  of  any  state  to  pass  acts  for  interpreting,  explain- 
ing, or  construing  a  national  treaty,  or  any  part  or  clause  of  it. 
Yet  in  that  instrument  there  was  no  express  judicial  powers  given 
to  the  general  government  to  construe  it.  It  was,  however,  deem- 
ed an  irresistible  and  exclusive  authority  in  the  general  govern- 
ment, from  the  very  nature  of  the  other  powers  given  to  them  ; 
and  especially  from  the  power  to  make  war  and  peace,  and  to  form 
treaties.  Journals  of  Congress,  April  13,  17b7,  p.  32,  &c.;  Rawle 
on  Const.  App.  2,  p.  31 G,  320. 

(a)  In  the  resolutions  passed  by  the  senate  of  South  Carolina,  in 
December  1827,  it  was  declared,  that  "the  constitution  of  the 
United  Slates  is  a  compact  between  the  people  of  the  different 
states  with  each  other,  as  separate  and  independent  sovereignties." 
Mr.  Grimke  filed  a  protest  founded  on  different  views  of  it.  See 
Grimke's  Address  and  Resolutions  in  1828,  (edition,  1829,  at 
Charleston,)  where  liis  exposition  of  the  constitution  is  given  at 
large,  and  maintained  in  a  very  able  speech. 

[*  In  this  remark  I  cordially  concur.  My  views  upon  this  por- 
tion of  our  subject  will  be  given,  however,  hereafter,  somewhat  at 
large.] 


140  LECTURES    ON 

exposition  of  its  advocates,  '  that  the  constitution  is  found- 
ed on  the  assent  and  ratification  of  the  people  of  America, 
given  by  deputies  elected  for  the  special  purpose ;  but  that 
this  assent  and  ratification  is  to  be  given  by  the  whole 
people,  not  as  individuals,  composing  one  entire  nation, 
but  as  composing  the  distinct  and  independent  states,  to 
which  they  respectively  belong.  It  is  to  be  the  assent  and 
ratification  of  the  several  states,  derived  from  the  supreme 
authority  in  each  state,  the  authority  of  the  people  them- 
selves. The  act,  therefore,  establishing  the  constitution 
will  not  be  [is  not  to  be]  a  national,  but  a  federal  act.'(6) 
'It  may  also  be  admitted,'  in  the  language  of  one  of  its 
most  enlightened  commentators,  that  '  it  was  formed,  not 
by  the  governments  of  the  component  states,  as  the  fede- 
ral government,  for  which  it  was  substituted,  was  formed. 
Nor  was  it  formed  by  a  majority  of  the  people  of  the  Uni- 
ted States,  as  a  single  conununity,  in  the  manner  of  a  con- 
solidated government.  It  was  formed  by  the  states,  that  is, 
by  the  people  in  each  of  the  states  acting  in  their  highest 
sovereign  capacity;  and  formed,  consequently,  by  the  same 
authority,  which  formed  the  state  constitutions. '(c)  But 
this  would  not  necessarily  draw  after  it  the  conclusion, 
that  it  was  to  be  deemed  a  compact,  (in  the  sense,  to 
which  we  have  so  often  alluded,)  by  which  each  state  was 
still,  after  the  ratification,  to  act  upon  it,  as  a  league  or 
treaty,  and  to  withdraw  from  it  at  pleasure.  A  government 
may  originate  in  the  voluntary  compact  or  assent  of  the 
people  of  several  states,  or  of  a  people  never  before  united, 
and  yet  when  adopted  and  ratified  by  them,  be  no  longer  a 
matter  resting  in  compact ;  but  become  an  e.\ecuted  go- 
vernment or  constitution,  a  fundamental  law,  and  not  a 
mere  league.  But  the  dithculty  in  asserting  it  to  be  a  com- 
pact between  the  people  of  each  state,  and  all  the  people 
of  the  other  states  is,  that  the  constitution  itself  contains 
no  such  expression,  and  no  such  designation  of  parties. (rf) 
We,  'the  people  of  the  United  States,  &c.  do  ordain,  and 
establish  this  constitution,'  is  the  language  ;  and  not  we,  the 

(&)  Tlie  Fedcrali.st,  No.  39;  see  Sturgis  v.  Croicnmshicld,  4 
Wheat.  R.  122,  193. 

(c)  Mr.  Madison's  letter  in  Nortli  American  Review,  October 
1830,  p.  537,538. 

{(1)  See  Dane's  App.  §  32,  33,  p.  41,  42,  43. 


CONSTITUTIONAL    LAW.  141 

people  of  each  state,  do  establish  this  compact  between 
ourselves,  and  the  people  of  all  the  other  states.*  We  are 
obliged  to  depart  from  the  words  of  the  instrument,  to  sus- 
tain the  other  interpretation  ;  an  interpretation,  which  can 
serve  no  better  purpose,  than  to  confuse  the  mind  in  rela- 
tion to  a  subject  otherwise  clear.  It  is  for  this  reason, 
that  we  should  prefer  an  adherence  to  the  words  of  the 
constitution,  and  to  the  judicial  exposition  of  these  words 
according  to  their  plain  and  common  import. (c) 

"  §  366.  But  supposing,  that  it  were  to  be  deemed  such 
a  compact  among  the  people  of  the  several  states,  let  us 
see  what  the  enlightened  statesman,  who  vindicates  that 
opinion,  holds  as  the  appropriate  deduction  from  it.  '  Be- 
ing thus  derived  (says  he)  from  the  same  source,  as  the 
constitutions  of  the  states,  it  has,  within  each  state,  the 
same  authority  as  the  constitution  of  the  state ;  and  is  as 
much  a  constitution  within  the  strict  sense  of  the  term, 
within  its  prescribed  sphere,  as  the  constitutions  of  the 
states  are,  within  their  respective  spheres.  But  with  this 
obvious  and  essential  difference,  that  being  a  compact 
among  the  states  in  their  highest  sovereign  capacity,  and 
constituting  the  people  thereof  one  jieople  for  certain  pur- 
poses, it  cannot  be  altered,  or  annulled  at  the  will  of  the 
states  individually,  as  the  constitution  of  a  state  may  be  at 
its  individual  will.'(y) 

(e)  Chisholm  V.  Georgia,  2  Dall.  419;  2  Cond.  Rep.  668,  671; 
Martin  v.  Hunter,  1  Wheat.  R.  304,  324;  Dane's  App.  p.  22,  24, 
29,  30,  37,  39,  40,  41,  42,  43,  51. 

(/)  Mr.  Madison's  letter,  North  American  Review,  October  1830, 
p.  538.  Mr.  Paterson  (afterwards  Mr.  justice  Paterson)  in  the  con- 
vention which  framed  the  constitution,  held  the  doctrine,  that  un- 
der the  confederation  no  state  had  a  right  to  withdraw  from  the 
Union  without  the  consent  of  all.     "  The  confederation  (said  he) 

[*  The  constitution  of  the  United  States  is  a  compact  between 
the  people  of  the  different  states  with  each  other  as  separate  and 
independent  sovereignties,  whereby  they  ordained  and  established 
a  government  for  the  conduct  of  their  national  concerns.  Its  first 
clause  is  the  act  of  all  the  states  agreeing  with  each  other  to  estab- 
lish that  constitution.  The  national  government  is  the  result  of 
this  agreement.  There  are,  moreover,  other  clauses  in  the  consti- 
tution which  may  be  regarded  as  e.xpress  engagement  of  each  state 
with  the  other  states  on  certain  specified  points.  Such  are  some 
of  those  in  art.  1,  §  10,  as  to  entering  into  treaties,  alliances,  &c., 
coining  money,  laying  duties,  keeping  troops,  &c.] 


142 


LECTURES    ON 


"§  367.  The  other  branch  of  the  proposition,  we  have 
been  considering,  is,  that  it  is  not  only  a  compact  between 
the  several  states,  and  the  people  thereof,  but  also  a  com- 
pact between  the  states  and  the  federal  government ;  and 
e  converse  between  the  federal  government,  and  the  several 
states,  and  every  citizen  of  the  United  States. (^)  This 
seems  to  be  a  doctrine  far  more  involved,  and  extraordina- 
ry, and  incomprehensible,  than  any  part  of  the  preceding. 
The  difficulties  have  not  escaped  the  observation  of  those, 
by  whom  it  has  been  advanced.  '  Although  (says  the  learn- 
ed commentator)  the  federal  government  can,  in  no  possi- 
ble vieio,  be  considered  as  a  party  to  a  compact  made  ante- 
rior to  its  existence ;  yet,  as  the  creature  of  that  compact, 
it  must  be  bound  by  it  to  its  creators,  the  several  states  in 
the  Union,  and  the  citizens  thereof.'(/t)  If  by  this,  no 
more  were  meant  than  to  state,  that  the  federal  govern- 
ment cannot  lawfully  exercise  any  powers,  except  those 
conferred  on  it  by  the  constitution,  its  truth  could  not  ad- 
mit of  dispute.  But  it  is  plain,  that  something  more  was 
in  the  author's  mind.  At  the  same  time,  that  he  admits, 
that  the  federal  government  could  not  be  a  party  to  the 
compact  of  the  constitution  *  in  any  possible  view,'  he 
still  seems  to  insist  upon  it,  as  a  compact,  by  which  the 

is  in  the  nature  of  a  compact;  and  can  any  state,  unless  by  the 
consent  of  the  vV  le,  eitlier  in  politics  or  law,  withdraw  their 
powers?  Let  it  be  said  by  Pennsylvania  and  the  other  large  states, 
that  they,  for  the  sake  of  peace,  assented  to  the  confederation  ;  can 
she  now  resume  her  original  right  without  the  consent  of  the 
donee  ?"*  Mr.  Dane  unequivocally  holds  the  same  language  in 
respect  to  the  constitution.  "  It  is  clear  (says  lie)  the  people  of 
any  one  state  alone,  never  can  take,  or  witiidraw  power  from  the 
United  States,  which  was  granted  to  it  by  all,  as  the  people  of  all 
the  states  can  do  riglitfully  in  a  justifiable  revolution,  or  as  the  peo- 
ple can  do  in  the  manner  their  constitution  prescribes."  Dane's 
App.  §  10,  p.  21. 

The  ordinance  of  1787,  for  the  government  of  the  western  ter- 
ritory, contains  (as  we  have  seen)  certain  articles  declared  to  be 
"articles  of  compact  f'  but  they  are  are  also  declared  to  "remain 
forever  unalterable,  e.xccjjt  by  common  consent."  So  that  there  may 
be  a  compact,  and  yet  by  tlie  stipulations  neither  party  may  be  at 
liberty  to  withdraw  from  it,  or  absole  itself  from  its  obligations. 
Ante,  p.  269. 

ig)  1  Tucker's  Black.  Comm.  IGO,  170. 

(A)  1  Tucker's  Black.  Comm.  170. 

*  Yates's  Debates,  4  Elliot's  Debates,  75. 


CONSTITUTIONAL    LAW. 


143 


federal  government  is  bound  to  the  several  states,  and  to 
every  citizen ;  that  is,  that  it  has  entered  into  a  contract 
with  them  for  the  due  execution  of  its  duties. 

"  §  368.  And  a  doctrine  of  a  like  nature,  viz  :  that  the 
federal  government  is  a  party  to  the  compact,  seems  to 
have  been  gravely  entertained  on  other  solemn  occasions. (i) 
The  difficulty  of  maintaining  it,  however,  seems  absolute- 
ly insuperable.  The  federal  government  is  the  result  of 
the  constitution,  or  (if  the  phrase  is  deemed  by  any  person 
more  appropriate)  the  creature  of  the  compact.*  How, 
then,  can  it  be  a  party  to  that  compact,  to  which  it  owes 
its  own  existence  ?(^')  How  can  it  be  said,  that  it  has  en- 
tered into  a  contract,  when  at  the  time  it  had  no  capacity 
to  contract;  and  was  not  even  in  esse  1  If  any  provision 
was  made  for  the  general  government's  becoming  a  party, 
and  entering  into  a  compact,  after  it  was  brought  into  ex- 
istence, where  is  that  provision  to  be  found  ?  It  is  not  to 
be  found  in  the  constitution  itself  Are  we  at  liberty  to 
imply  such  a  provision,  attaching  to  no  power  given  in  the 
constitution.     This  would  be  to  push  the  doctrine  of  im- 

(i)  Debate  in  the  senate,  in  1830,  on  Mr.  Foot's  resolution,  4 
Elliot's  Debates,  31-5  to  331. 

(A-)  Webster's  Speeches,  429;  4  Elliot's  Debates,  324. 

[*  Most  true.  It  was  the  result  of  that  compact  or  agreement  be- 
tween the  several  states,  by  which  it  was  ordained  and  constituted. 
The  government  is  not  the  partij  to  the  contract.  It  is,  indeed,  the 
creature  of  it.  It  is  but  the  servant  or  agent  of  the  contracting 
parties.  If  this  servant  violates  its  authority,  its  aberrations  are 
corrected  by  various  means  provided  by  the  instrument.  First,  the 
judiciary  may  pronounce  its  acts  void.  Secondly,  the  people  may 
change  their  representatives,  the  states  their  senators,  and  the  na- 
tion its  executive.  These  are  the  remedies  provided  by  the  con- 
stitution itself.  But  it  may  happen  that  the  wrongs  originate  \v\t\i 
the  constituency.  One  part  of  the  Union  persists  in  what  the 
other  thinks  oppression.  If  this  be  actually  so,  then  are  the  op- 
pressed driven  back  to  their  original  rights  and  the  law  of  self- 
preservation.  But  this  is  revolution;  and  though  the  right  of  re- 
volution is  undeniable,  it  is  justified  only  by  extreme  cases  and 
serious  oppression.  It  is  always  an  evil,  and  is  an  alternative  never 
to  be  lightly  adopted.  It  is  better  to  "  bide  our  time"  and  wait  for 
the  correction  (in  the  natural  course  of  things)  of  evils  that  are 
not  intolerable,  tlian  to  upturn  the  fabric  of  society  for  trifles.  If 
the  complaining  party  has  a  right  to  judge,  so  has  the  party  com- 
plained of,  and  while  it  holds  the  mastery,  there  is  no  remedy  ex- 
cept revolution,  or  submission  to  the  will  of  the  majority  until  they 
can  be  made  to  "kick  the  beam,"  in  their  turn.] 


144  LECTURES    ON 

plication  to  an  extent  truly  alarming;  to  draw  inferences, 
not  from  what  is,  but  from  what  is  not,  stated  in  the  in- 
strument. But,  if  any  such  implication  could  exist,  when 
did  the  general  government  signify  its  assent  to  become 
such  a  party?  When  did  the  people  authorize  it  to  do 
so  ?(^)  Could  the  government  do  so,  without  the  express  au- 
thority of  the  people  ?  These  are  questions,  which  are 
more  easily  asked,  than  answered. 

"  §  309.  In  short,  the  difficulties  attendant  upon  all  the 
various  theories  under  consideration,  which  treat  the  con- 
stitution of  the  United  States,  as  a  compact,  either  between 
the  several  states,  or  between  the  people  of  the  several 
states,  or  between  the  whole  people  of  the  United  States, 
and  the  people  of  the  several  states,  or  between  each  citi- 
zen of  all  the  states,  and  all  other  citizens,  are,  if  not  ab- 
solutely insuperable,  so  serious,  and  so  wholly  founded 
upon  mere  implication,  that  it  is  matter  of  surprise,  that 
they  should  have  been  so  extensively  adopted,  and  so  zea- 
lously propagated.  These  theories,  too,  seem  mainly  urged 
with  a  view  to  draw  conclusions,  which  are  at  war  with  the 
known  powers,  and  reasonable  objects  of  the  constitution  ; 
and  which,  if  successful,  would  reduce  the  government  to 
a  mere  confederation.  They  are  objectionable,  then,  in 
every  way ;  first,  because  they  are  not  justified  by  the  lan- 
guage of  the  constitution  ;  secondly,  because  they  have  a 
tendency  to  impair,  and  indeed  to  destroy,  its  express 
powers  and  objects  ;  and  thirdly,  because  they  involve  con- 
sequences, which,  at  the  will  of  a  single  state,  may  over- 
throw the  constitution  itself.  One  of  the  fundamental 
rules  in  the  exposition  of  every  instrument  is,  so  to  con- 
strue its  terms,  if  possible,  as  not  to  make  them  the  source 
of  their  own  destruction,  or  to  make  them  utterly  void,  and 
nugatory.  And  if  this  be  generally  true,  with  how  much 
more  force  docs  the  rule  apply  to  a  constitution  of  govern- 
ment, framed  for  the  general  good,  and  designed  for  per- 
petuity .''  Surely,  if  any  implications  are  to  be  made  beyond 
its  terms,  they  are  implications  to  preserve,  and  not  to  de- 
stroy it.(/?/) 

(I)  Dane's  App.  §  32,  p.  41  ;  Id.  ;,:  38,  p.  46. 

(m)  The  following  strong  language  is  extracted  from  instructions 
given  to  some  representatives  of  the  state  of  Virginia  by  tlieir  con- 
stituents in  1787,  with  reference  to  the  confederation  :  "  Govern- 


CONSTITUTIONAL    LAW.  145 

"  §  370.  The  cardinal  conclusion,  for  which  this  doc- 
trine of  a  compact  has  been,  with  so  much  ingenuity  and 
ability,  forced  into  the  language  of  the  constitution,  (for 
the  language  no  where  alludes  to  it,)  is  avowedly  to  estab- 
lish, that  in  construing  the  constitution,  there  is  no  com- 
mon umpire ;  but  that  each  state,  nay  each  department  of 
the  government  of  each  state,  is  the  supreme  judge  for  it- 
self, of  the  powers,  and  rights,  and  duties,  arising  under 
that  instrument. (w)*  Thus,  it  has  been  solemnly  asserted 
on  more  than  one  occasion,  by  some  of  the  state  legisla- 
tures, that  there  is  no  common  arbiter,  or  tribunal,  autho- 
rized to  decide  in  the  last  resort,  upon  the  powers  and  the 
interpretation  of  the  constitution.  And  the  doctrine  has 
been  recently  revived  with  extraordinary  zeal,  and  vindi- 
cated with  uncommon  vigour. (o)    A  majority  of  the  states, 

ment  without  coercion  is  a  proposition  at  once  so  absurd  and  self- 
contradictory,  that  the  idea  creates  a  confusion  of  the  understand- 
ing. It  is  form  without  substance  ;  at  best  a  body  without  a  soul. 
If  men  would  act  right,  governments  of  all  kinds  would  be  use- 
less. If  states  or  nations,  who  are  but  assemblages  of  men,  would 
do  right,  there  would  be  no  wars  or  disorders  in  the  universe.  Bad 
as  individuals  are,  states  are  worse.  Clothe  men  with  public  au- 
thority, and  almost  universally  they  consider  themselves,  as  libe- 
rated from  the  obligations  of  moral  rectitude,  because  they  are  no 
longer  amenable  to  justice."     1  Amer.  Mus.  290. 

(w)  Madison's  Virginia  Report,  January  1800,  p.  6,  7,  8,  9;  Web- 
ster's Speeches,  407  to  409,  410,  411,  419  to  421 . 

(o)  The  legislature  of  Virginia  in  1829,  resolved  that  there  is  no 
common  arbiter  to  construe  the  constitution  of  the  United  States  ; 
the  constitution  being  a  federative  compact  between  sovereign 
states,  each  state  has  a  riglit  to  construe  the  compact  for  itself." 
Georgia  and  South  Carolina  have  recently  maintained  the  same 
doctrine ;  and  it  has  been  asserted  in  the  senate  of  the  United 
States,  with  an  uncommon  display  of  eloquence  and  pertinacity.* 
It  is  not  a  little  remarkable,  that  in  1810,  the  legislature  of  Virgi- 
nia thought  very  differently,  and  then  deemed  the  supreme  court 
a  fit  and  impartial  tribunal.!  Pennsylvania  at  the  same  time,  though 
she  did  not  deny  the  court  to  be,  under  the  constitution,  the  appro- 

[*  It  will  be  seen  in  the  sequel  that  we  contend  for  no  such  un- 
qualified proposition,  but  deny  as  earnestly  as  our  author,  the  whole 
notion  of  nullification.  It  is  not  necessary  to  enter  upon  the  sub- 
ject here.] 

*  9  Dane's  Abridg.  ch.  187,  art.  20,  $  13,  p.  .589,  &c.  591  ;  Dane's  App.  52  to  59, 
G7  to  72  ;  3  American  Annual  Register,  Local  Hist.  131. 

t  North  American  Review,  October  1830,  p.  509,  512  :  6  Wheat  R.  358. 

13 


146  LECTURES    ON 

however,  have  never  assented  to  this  doctrine  ;  and  it  has 
been,  at  different  times,  resisted  by  the  legislatures  of  se- 
veral of  the  states,  in  the  most  formal  declarations.(/>) 

"  §  371.  But  if  it  were  admitted  that  the  constitution  is 
a  compact,  the  conclusion,  that  there  is  no  common  arbi- 
ter, would  neither  be  a  necessary,  nor  natural  conclusion 
from  that  fact  standing  alone.  To  decide  upon  the  point, 
it  would  still  behove  us  to  examine  the  very  terms  of  the 
constitution,  and  the  delegation  of  powers  under  it.  It 
would  be  perfectly  competent  even  for  confederated  states 
to  agree  upon,  and  delegate  authority  to  construe  the  com- 
pact to  a  common  arbiter.  The  people  of  the  United  States 
had  an  unquestionable  right  to  confide  this  power  to  the  go- 
vernment of  the  United  States,  or  to  any  department  there- 
of, if  they  chose  so  to  do.  The  question  is,  whether  they 
have  done  it.  If  they  have,  it  becomes  obligatory  and 
binding  upon  all  the  states. 

priate  tribunal,  was  desirous  of  substituting  some  other  arbiter.* 
Tlie  recent  resolutions  of  her  own  legislature  (in  March  1831) 
shew,  that  she  now  approves  of  the  supreme  court,  as  the  true  and 
common  arbiter.  One  of  the  expositions  of  the  doctrine  is,  that  if 
a  single  state  denies  a  power  to  exist  under  the  constitution,  that 
power  is  to  be  deemed  defunct,  unless  three  fourths  of  the  states 
shall  afterwards  reinstate  that  power  by  an  amendment  to  the  con- 
stitution.! What,  then,  is  to  be  done,  where  ten  states  resolve,  that 
a  power  exists,  and  one,  that  it  does  not  exist  ?  See  Mr.  vice-pre- 
sident Calhoun's  letter  of  28th  August  1832,  to  Gov.  Hamilton. 

(p)  Massachusetts  openly  opposed  it  in  the  resolutions  of  her  legis- 
lature of  the  12th  of  February  1791),  and  declared,  "that  the  deci- 
sion of  all  cases  in  law  and  equity  arising  under  the  constitution 
of  the  United  States,  and  the  construction  of  all  laws  made  in  pur- 
suance thereof,  are  exclusively  vested  by  the  people,  in  the  judicial 
courts  of  the  United  States  "t  Six  otlior  states,  at  that  time,  seem 
to  have  come  to  the  same  result. §  And  on  other  occasions,  a  larger 
number  have  concurred  on  the  same  point. ||  Similar  resolutions 
have  been  passed  by  the  legislatures  of  Delaware  and  Connecticut 
in  1831,  and  b}'  some  other  states.  How  is  it  ])Ossible,  for  a  mo- 
ment, to  reconcile  the  notion,  that  each  state  is  the  supreme  judge 
for  itself  of  the  construction  of  the  constitution,  with  tlie  very  first 
resolution  of  the  convention,  whicJi  formed  the  constitution  :  "  Re- 
solved, &c.  that  a  national  gorernmcnt  ought  to  be  established, 
consisting  of  a  siipreinc,  legislative,  judiciary  and  executive  .'"H 

■■) 

*  North  American  Review,  id.  507,  508. 

t4  Elliot '.s  Debates,  320,  391. 

I  Dane's  App.  .W. 

^  North  Amerian  Review,  October  1830,  p.  500. 

II  Dane's  App.  67  ;  id.  52  to  59. 

M  Journals  of  Convention,  83  ;  4  Elliot's  Deb.  49. 


CONSTITUTIONAL    LAW.  147 

"  §  372.  It  is  not,  then,  by  artificial  reasoning  founded 
upon  theory,  but  upon  a  careful  survey  of  the  language  of 
the  constitution  itself,  that  we  are  to  interpret  its  powers, 
and  its  obligations.  We  are  to  treat  it,  as  it  purports  on 
its  face  to  be,  as  a  constitution  of  government ;  and  we 
are  to  reject  all  other  appellations,  and  definitions  of  it, 
such,  as  that  it  is  a  compact,  especially  as  they  may  mis- 
lead us  into  false  constructions  and  glosses,  and  can  have 
no  tendency  to  instruct  us  in  its  real  objects." 


LECTURES  ON  CONSTITUTIONAL  LAW.       149 


LECTURE  VI. 

Having  thus  presented  at  length  judge  Story's  views  of 
the  nature  of  the  constitution  of  the  United  States,  I  shall 
now  proceed  to  a  critical  examination  of  some  of  his  po- 
sitions. The  principal  foundation  upon  which  they  rest, 
is  the  assumption  that  the  states  are  not  parties  to  the  con- 
stitution ;  that  it  is  the  act  of  the  people  of  the  United 
States  as  a  nation ;  that  it  is  therefore  not  a  compact,  and 
that  our  institutions  are  national  not  federative.  My  first 
duty,  therefore,  shall  be  to  shew,  that  these  assumptions 
are  not  warranted  by  the  history  of  the  transaction.  I  shall 
contend 

1.  That  the  formation  of  the  constitution  was  in  its  ori- 
gination, its  progress,  and  its  final  ratification,  the  act  of 
the  states  as  free  and  independent  sovereignties,  and  not 
of  the  whole  people  of  America  as  one  people. (a) 

2.  That  if  the  sovereignty  of  the  states  be  admitted,  no 
constitution  could  have  been  made  without  the  assent  of 
those  sovereignties. 

3.  That  if  it  be  the  act  of  the  states,  it  is  a  compact ; 
a  compact  to  establish  a  particular  form  of  government  or 
system  of  polity  for  the  conduct  of  the  external  relations 
of  the  states,  and  for  some  other  specified  purposes. 

And  first,  it  was  the  act  of  the  states  as  sovereignties, 
and  not  of  the  whole  people  of  America  as  one  people. 

This  proposition  affirms,  in  the  first  place,  that  when  the 
constitution  of  the  United  States  was  formed  and  adopted, 
the  several  states  of  the  Union  were  sovereign  and  inde- 

(«)  In  the  case  of  Martin  v.  Hunter,  judge  Story,  for  the  supreme 
court,  said,  that  "the  constitution  of  the  United  States  was  or- 
dained and  established,  7iot  hij  the  states  in  their  sovereign  capaci- 
ty, but,  emphatically,  as  the  preamble  of  the  constitution  declares, 
by  the  people  of  the  United  States."  I  offer  as  a  set-ofF  to  this, 
the  remark  of  the  venerable  judge  Pendleton,  in  2  W.  298,  "  that 
though  the  diffierent  states  of  America  form  a  confederated  govern- 
ment, yet  the  several  states  retain  their  individual  sovereignties, 
and  with  respect  to  their  municipal  laws  are  to  each  other  foreign." 
If  their  original  sovereignties  are  retained,  how  could  the  consti- 
tution be  formed  but  by  their  act  as  a  federal  compact.' 
13* 


150  LECTURES    ON 

pendent.  The  trutk  of  the  proposition  is  abundantly  ma- 
nifest. Whatever  may  be  our  speculations  on  the  subject 
of  the  relation  of  the  colonies  towards  each  other  before 
or  after  the  declaration  of  independence,  the  articles  of 
confederation  leave  no  doubt  of  the  character  of  its  mem- 
bers subsequent  to  its  adoption.  In  the  second  section,  it 
is  formally  declared  that  each  state  retains  its  sovereignty, 
freedom  and  independence,  so  that  the  clause  in  effect  has 
the  operation  of  an  assertion  by  each,  and  an  acknowledg- 
ment by  all,  of  their  respective  pretensions  to  the  charac- 
ter of  sovereign  and  independent  states. 

Such  being  their  condition  when  the  articles  of  confe- 
deration were  adopted,  the  confederation  itself  was  nothing 
but  a  league  between  sovereign  powers,  in  which,  no  power 
not  expressly  delegated,  was  possessed  by  the  league,  but 
every  power,  jurisdiction  and  right,  not  expressly  delega- 
ted, was  retained  by  the  states. 

The  league  was  declared  to  be  perpetual  and  unaltera- 
ble, except  by  the  consent  of  every  state :  and  it  was  rati- 
fied and  signed  by  the  delegates  of  the  several  states  who 
"  solemnly  plighted  and  engaged  the  faith  of  their  respec- 
tive constituents  {the  states)  for  its  observance." 

The  league  thus  made,  having  been  declared  to  be  per- 
petual, could  only  have  been  properly  dissolved  by  those 
who  made  it;  i.  e.  by  the  states,  as  sovereignties,  by  whose 
authority  it  had  been  adopted.  Accordingly,  when  in 
17SG,  as  we  have  already  seen,  the  difficulties  and  embar- 
rassments of  the  existing  state  of  things,  suggested  the  ab- 
solute necessity  of  a  change,  certain  commissioners  were 
appointed  by  the  legislattire  of  the  state  of  Virginia,  one 
of  the -sovereign  parties  to  the  confederacy,  to  meet  other 
commissioners  from  the  other  states,  for  the  purpose  of 
proposing  amcncluunts  to  the  confederation.  These  com- 
missioners were  agents  and  representatives  of  the  respec- 
tive state  sovereignties,  and  acted  as  such;  each  delega- 
tion acting  for  itself,  voting  for  itself,  and  the  majority  of 
each  giving  the  vote  of  its  state. (6)  The  representatives 
of  the  five  states  who  assembleu,  recommended  to  congress, 
the  appointment  (with  the  assent  of  the  states)  of  a  con- 
vention to  meet  at  Philadelphia.     What  was  congress?    It 

(i)  See  1  L.  U.  S.  55. 


CONSTITUTIONAL    LAW.  ]51 

was  an  assembly  of  states,  by  their  separate  and  distinct 
delegations,  without  a  single  trait  of  national  government. 
Their  action  was  of  course  state  action.  They  did  re- 
commend the  appointment  of  delegates  by  the  states  to  a 
general  convention  of  the  states  in  Philadelphia.  The 
states  accordingly, — aye,  the  very  legislatures  themselves, 
representing  the  state  sovereignty, — appointed  delegates 
with  separate  commissions  and  instructions.  The  people 
had  no  agency  in  this,  except  through  their  legislatures. 
Thus  far,  then,  all  is  clearly  state  action.  The  convention 
met.  Of  whom  was  it  composed  ?  Of  delegates  represent- 
ing the  states  through  the  state  legislatures.  Having  thus 
met  as  delegates  of  state  sovereignties,  could  they  put  off 
that  character  and  assume  that  of  representatives  of  the 
people,  as  forming  one  nation  or  people?  They  could  not, 
neither  did  they  attempt  it.  On  the  contrary,  they  acted 
throughout  as  the  representatives  of  separate  state  sove- 
reignties. They  voted  throughout  by  states.  The  dele- 
gates from  each  state  voted  together,  and  the  majority  of 
the  delegation  gave  the  vote  of  the  state.  Nor  was  this 
all.  Every  measure  was  decided  by  the  majority  of  states, 
not  of  individual  votes.  Every  state  had  an  equal  weight 
in  this  great  council  of  sovereigns.  The  dwarf  and  the 
giant  were  upon  an  equality.  Delaware  and  Pennsylvania, 
Georgia  and  New  York — all  were  equal,  for  all  were  so- 
vereigns ;  and  in  the  estimate  of  the  law  of  nations,  every 
sovereign  has  equal  rights  with  others.  In  all  these  pro- 
ceedings, we  see  not  a  single  feature  of  nationality,  but 
every  distinctive  characteristic  of  state  action.  The  dele- 
gates had  been  appointed  for  states,  they  acted  accord- 
ingly for  states,  and  they  voted  by  stairs.  Even  6y  states 
they  voted  upon  the  final  adoption  of  the  constitution.  In 
what  character,  then,  was  the  act  done  by  them?  In  what 
character  onh/  could  it  have  been  done  ?  Could  it  have 
been  done  in  any  other  character  than  as  representatives 
of  the  states?  Could  they  lawfully  put  off  the  character 
given  them  and  throw  up  their  commissions,  and  yet  con- 
tinue to  act,  and  to  act  in  another  character?  Could  they 
not  only  put  off  the  character  they  held,  but  also  assume 
the  character  of  representatives  of  the  people,  by  whom 
they  were  not  appointed,  and  even  of  the  whole  people  of 
the  Union,  with  a  large  portion  of  whom  they  had  no  sort 


152  LECTURES    ON 

of  communion.  It  would  have  been  rank  usurpation,  and 
the  act  would  have  been  void,  as  totally  destitute  of  autho- 
rity. Of  this  they  did  not  dream.  They  signed  the  draft 
of  the  constitution  as  an  act  of  the  states.  The  attesta- 
tion is,  "  Done  in  convention  by  the  unanimous  consent  of 
7f  the  STATES  present,"  and  each  delegation  signed  sepa- 
rately and  apart  from  the  others.  What  then  becomes  of 
the  pretence,  that  "  We  the  people  of  the  United  States," 
means  the  people  nationally,  as  one  whole,  and  not  the 
people  of  each  state  with  the  people  of  the  other  states  ? 
What  justifies  the  assertion,  that  "  the  constitution  was 
ordained  and  established  "  not  by  the  states  in  their  sove- 
reign capacities,"  but  emphatically  as  the  preamble  of 
the  constitution  declares,  "  by  the  people  of  the  United 
States?"  If  this  was  the  meaning  of  the  words  "  We  the 
people  of  the  United  States,"  in  the  constitution,  then,  as 
I  have  already  said,  the  whole  act  was  an  usurpation,  since 
the  delegates  were  not  empowered  to  act  but  for  the  states 
in  their  sovereign  capacities.  Shall  we,  then,  by  a  forced 
construction,  attribute  to  the  delegates  an  action  in  a  cha- 
racter which  they  did  nut  possess,  and  which  in  no  other 
part  of  their  proceedings  they  appear  to  have  arrogated  ? 
Shall  we  gratuitously  attribute  to  them  usurpation,  when 
the  language  used  by  them,  is  as  fairly  applicable  to  the 
character  they  really  filled  ?  Shall  we  suppose  that  the 
whole  convention  nem.  con.  with  one  consent,  but  without 
any  formal  proposition  to  that  effect,  agreed  to  put  off  the 
character  that  really  belonged  to  them,  and  to  usurp  one 
that  did  not,  and  that  at  the  head  of  these  was  the  patriot 
Washington,  the  president  of  the  convention,  and  deputy 
from  Virginia?      Creclut  jud/pus  appella,  nan  ego! 

It  is  of  no  little  importance  in  the  consideration  of  the 
import  of  these  words,  to  remark  upon  the  received  mean- 
ing of  the  words  United  States,  at  the  time  of  the  adop- 
tion of  the  constitution.  Did  those  words,  in  con)mon 
acceptation,  or,  according  to  technical  use  or  pliilo- 
logical  accuracy,  mean  one  peple  or  thirteen  sovereign- 
ties? There  is  little  reason  to  doubt  that,  in  comuKm  par- 
lance, "  United  States"  implied  the  several  political  bodies 
which  had  united  for  common  defence.  Such  is  its  true 
meaning  philologically,  for  when  we  speak  of  things  united, 
we  imply  a  previous  separation  of  the  parts.     But  what  is 


CONSTITUTIONAL    LAW.  153 

conclusive,  the  words  are  used  in  the  articles  of  confedera- 
tion itself,  not  as  indicating  oneness  or  nationality,  but  as 
applying  to  thirteen  distinct  sovereignties.  The  first  arti- 
cle declares  that  "  The  style  of  the  confederacy  shall  be  -'^, 
THE  United  States  of  America,"  while  in  the  very  next, 
the  separate  sovereignty  of  each  state  is  anxiously  secured. 
"  United  States,"  therefore,  does  not  mean  one  people,  but 
several  peoples  united,  and  in  this  sense  must  the  delegates 
appointed  under  that  confederation  have  used  the  language. 
For  where  known  words  are  used,  to  which  a  distinct 
meaning  has  attached,  the  accustomed  interpretation  of 
them  must  be  followed ;  and,  as  under  the  confedera- 
tion, the  words  "  United  States"  could  not  imply  one 
whole,  because  the  parts  were  kept  distinct,  so  the  same 
words  cannot,  in  the  constitution,  mean  one  whole,  but  the 
several  parts.  "  We,  the  people  of  the  United  States," 
therefore,  means  "  We,  the  people  of  the  several  states 
composing  this  confederacy,"  and  not  "  We,  the  people  of 
the  United  States  constituting  one  people."  In  the  former 
sense  it  was  natural  that  it  should  be  used  by  delegates  re- 
presenting distinct  states,  for  when  they  used  those  words 
they  were  acting  under  the  confederacy,  and  used  them  as 
used  in  the  articles  themselves ;  but  it  is  altogether  un- 
natural, that  in  speaking  of  an  act  done  while  the  confede- 
racy still  subsisted,  they  should  use  expressions  which  im- 
plied its  obliteration  at  the  moment  of  their  use.  They 
could  not,  with  truth,  speak  of  the  people  as  one  whole  in 
the  act  of  forming  the  constitution  ;  for  they  were  then  thir- 
teen distinct  states  under  the  confederation,  and  even  if  they 
became  one,  by  the  adoption  of  the  constitution,  they  were 
not  one  in  the  act  of  its  formation. 

Let  us  proceed.  After  the  adoption  of  the  plan  of  the 
constitution  by  the  convention,  that  body  again  met; 
"present,  the  states  of  New  Hampshire,"  &-c.  (enume- 
rating them,)  and  resolved  that  the  constitution  should  be 
laid  before  congress,  and  afterwards  submitted  to  a  conven- 
tion of  delegates,  chosen  in  each  state  by  the  people 
thereof,  under  the  recommendation  of  its  legislature,  for 
their  assent.  Here  then  we  see  that  there  was,  in  the  rati- 
fication, to  be  a  separate  action  of  each  state,  under  the 
recommendation  of  its  regularly  constituted  organ.  And 
the  reason  why  it  was  referred  to  the  people  for  adoption. 


154 


LECTURES    ON 


and  not  to  the  legislatures,  was  that  before  given,  and 
strongly  stated  by  judge  Story  himself,  vol.  1,  p.  330.  The 
ordinary  legislatures  having  been  empowered  merely  to  ad- 
minister the  state  constitutions,  such  as  they  were,  had  no 
power  to  enlarge  or  limit  their  own  powers  by  transferring 
them  to  another,  and  still  less  to  give  away  the  powers  of 
the  state  without  its  authority. 

But  what  were  the  conventions  thus  formed?  They 
came  directly  from,  and  did,  beyond  question,  represent 
the  people.  But  what  people  ?  The  people  of  the  state  as 
a  sovereign  state,  or  a  part  of  the  people  of  the  United 
States,  considered  as  one  whole  ?  Undoubtedly  the  former, 
for  the  ratification  was  to  be  by  states.  Each  state  con- 
vention met  separately,  acted  separately,  adopted  separate- 
ly. The  whole  action  of  the  conventions,  then,  was  state 
action.  It  could  not  be  otherwise.  The  states  were  still 
sovereign.  They  were  still  in  the  bonds  of  the  confede- 
racy. These  could  only  be  thrown  off,  as  I  have  already 
said,  by  state  action,  since  the  states  themselves  had  im- 
posed them.  All  this  is  rendered  beyond  question,  by  the 
ratifications  of  the  respective  conventions.  These  ratifica- 
tions, in  almost  every  instance,  distinctly  evince  state  ac- 
tion on  the  part  of  the  conventions.  They  are  too  im- 
portant to  the  question  before  us  to  be  entirely  omitted. 
Short  extracts  follow : 

Delaware.  We,  the  deputies  of  the  people  of  Delaware 
state,  &/C.,  &LC.,  in  virtue  of  the  power  and  authority  to  us 
given,  for  and  in  behalf  of  ourselves  and  our  constituents, 
do  ratify  and  confirm,  &c. 

Pennsylvania.  We,  the  delegates  of  the  people  of  the 
commonwealth  of  Pennsylvania  do,  in  the  name  and  by  the 
authority  of  the  same  people,  ratify,  &.c. 

Neto  Jersey.  We,  the  delegates  of  the  state  of  New 
Jersey,  do  hereby,  for  and  on  behalf  of  the  people  of  the 
said  state,  agree  to,  &lq,. 

Connecticut.  In  the  name  of  the  people  of  the  state  of 
Connecticut.  We,  the  deleg  tes  of  the  people  of  the  said 
state,  have,  &c. 

Massachusetts.  The  convention  having  impartially  dis- 
cussed, &c.,  do,  in  the  naine  and  in  behalf  of  the  common- 
wealth of  Massachusetts,  assent  to  and  ratify  the  said  con- 
stitution, &LC. 


CONSTITUTIONAL    LAW.  155 

Georgia.  We,  the  delegates  of  the  people  of  the  state 
of  Georgia,  have  assented  to,  &c.,  in  virtue  of  the  powers 
and  authority  given  to  us  by  the  people  of  the  said  state. 

Maryland.  We,  the  delegates  of  the  people  of  Mary- 
land, having,  &c.,  do,  for  ourselves,  and  in  the  name  and 
on  the  behalf  of  the  people  of  this  state,  ratify,  &lc. 

South  Carolina.  In  convention  of  the  people  of  South 
Carolina,  by  their  representatives;  the  convention,  &c., 
&c.,  do,  m  the  name  and  behalf  of  the  people  of  this  state, 
assent  to,  &.c. 

New  Hampshire.  In  convention  of  the  delegates  of  the 
people  of  the  state  of  New  Hampshire.  The  convention 
do,  in  the  name  and  behalf  of  the  people  of  Neto  Hamp- 
shire, &c.  ratify,  &c. 

Virginia.  We,  the  delegates  of  the  people  of  Virginia, 
do,  in  the  name  and  behalf  of  the  people  of  Virginia,  as- 
sent to,  &c. 

Neio  York.  We,  the  delegates  of  the  people  of  the  state 
of  Neic  York,  in  ih.e  name  and  behalf  of  the  people  of  New 
York,  do,  &c. 

North  Carolina.  Resolved  that  this  convention,  in  be- 
half of  the  freemen,  citizens  and  inhabitants  of  North 
Carolina,  do  adopt,  &-c. 

Rhode  Island.  We  the  delegates  of  the  people  of  the 
state  of  Rhode  Island,  in  the  name  and  behalf  of  the  peo- 
ple of  the  said  state,  &c. 

Thus,  with  all  deference  to  the  learned  commentator,  it 
appears  to  me  that  in  the  origin,  progress  and  adoption  of 
the  constitution  of  the  United  States,  the  states,  free,  so- 
vereign and  independent,  were  the  actors,  and  emphati- 
cally the  parties.  The  ratifications  evince,  beyond  ques- 
tion, that  in  the  adoption  of  the  constitution,  each  con- 
vention represented  its  own  state  only,  and  assented  to  the 
plan  of  government  in  the  name  and  behalf  of  the  people 
thereof.  It  can  never  be  too  much  regretted  that  the  able 
commentator,  whose  work  is  destined  to  be  so  much  the 
manual  of  our  youth,  should,  in  his  account  of  the  ratifi- 
cations by  the  states,  have  omitted  this  important  fact, 
which  takes  away  the  whole  force  of  the  argument  so  much 
insisted  on  as  to  the  first  words  of  the  constitution.  It  is 
contended,  that,  as  the  convention  has  used  the  language 
"  We  the  people  of  the  United  States,"  the  act  was  in  the, 


156  LECTURES    ON 

name  and  behalf  of  the  whole  people,  and  not  "  of  the 
people  of  the  respective  states;"  whereas  all  the  ratifica- 
tions being,  in  fact,  in  the  name  and  behalf  of  the  respec- 
tive states,  the  last  clinching  act  done  by  conventions,  act- 
ing distinctly  for  the  people  of  each  state  alone,  establishes, 
beyond  question,  that  the  constitution  is  the  act  of  the 
states  as  such,  and  not  of  the  people  of  the  ichole  United 
States  as  one  people. 

Nothing  then  is  wanting  to  refute  the  positions  that  the 
constitution  "  was  not  ordained  and  established  by  the 
states  in  their  sovereign  capacities,"  and  "that  the  states 
were  not  the  parties  to  the  instrument."  For  if  the  states 
had  not  ratified  it,  the  projet  would  have  been  defeated; 
and  as  it  was  ratified  by  states  or  conventions,  in  the  name 
and  in  behalf  of  states  who  were  then  at  least  sovereign,  it 
must  derive  its  whole  vigour,  force  and  effect  from  the  ac- 
tion of  those  sovereign  states  themselves. 

The  considerations  which  go  to  establish  this  view  of 
the  matter  are  abounding.  Among  others,  we  ought  not 
to  omit  some  provisions  on  the  face  of  the  constitution  itself. 
Thus  it  is  provided,  that  the  legislatures  of  the  states  may 
propose  amendments,  and  that  amendments,  when  proposed, 
shall  be  adopted  by  legislatures  or  conventions  of  three 
fourths  of  the  states — not  three  fourths  of  the  whole  popula- 
tion of  the  United  States  ;  thus  distinctly  shewing  that  the 
sovereignties  are  looked  to  as  the  parties,  and  their  rights  re- 
spected as  such  upon  the  principles  of  national  law.  On 
what  other  principle  could  we  justify  the  election  of  a  pre- 
sident by  the  house  of  representatives — 

"  that  great  Procrustes  bed, 
The  acknowledged  work  of  huckstering  compromise  ; 
On  which  the  sov'reign  states  are  prostrate  laid 
And  stretched  or  clipped  to  the  same  common  size  : 
Where  the  leviathan  with  all  its  pride, 
Shrinks  to  a  minnow  ;  or  the  pigmy  fay 
Grown  to  a  giant,  with  important  stride, 
And  new  born  power  struts  its  hour  away. 
Then  shrinks  again  '/s  humbler  part  to  play." 

Again,  how  is  it,  if  this  was  a  national  government,  and 
one  "not  ordained  by  the  states,"  that  only  those  states 
were  bound  who  ratified  ?  Why,  as  in  all  national  govern- 
ments, did  not  the  majority  prevail  and  bind  the  rest? 
Why,  as  in  all  federal  compacts,  were  none  bound  but 


CONSTITUTIONAL    LAW.  157 

those  who  ratified  ?     Why,  but  because  it  was  a  govern- 
ment of  federative  character? 

New  states  formed  out  of  old  states,  or  parts  of  old 
states,  may  be  admitted  into  the  union.  In  what  character? 
And  in  what  character  do  they  come  under  the  obligations 
of  the  constitution  ?  As  states.  Could  a  portion  of  the 
people,  who  had  not  formed  a  government,  and  erected 
themselves  into  a  state,  enter  the  union?  Assuredly  not; 
for  they  could  have  no  representative  in  the  senate,  as  they 
would  have  no  legislature  to  elect  one.  Thus,  so  far  from 
not  being  a  government  of  states,  it  is  a  government  which 
can  only  subsist  by  states  and  to  which  states  alone  are 
parties. 

A  person  charged  with  treason  against  any  state,  and 
fleeing  from  justice,  shall  be  delivered  up.  Treason,  then, 
the  crimen  Icbscb  majistatis,  can  be  committed  against  a 
state;  it  is,  therefore,  conceded  by  the  constitution  itself 
to  be  sovereign  ;  and  if  sovereign,  it  can  only  be  bound 
by  its  own  act  and  consent.  It  must  then  be  a  party  to 
the  constitution,  or  the  constitution  has  no  existence. 

The  inhibitions  upon  the  exercise  of  powers  by  states, 
in  art.  1,  ^  10,  are  all  admissions  of  state  sovereignty. 
That  section  restrains  the  exercise  of  sovereign  powers 
which  did  belong  to  the  states,  but  which  they  have  con- 
sented to  forego  for  the  public  good. 

The  citizens  of  each  state  are  secured  the  privileges  of 
citizens  in  every  other.  Evidences  might  be  further  mul- 
tiplied, derived  from  the  "  face  of  the  coustitution"  itself, 
of  the  admitted  sovereignty  of  the  states,  and  of  the  fact 
that  they  were  the  contracting  parties  in  the  formation  of 
the  government.  It  was  ordained  and  established  by  the 
people,  indeed,  but  by  the  people  of  the  several  communi- 
ties constituting  separate  and  distinct  states.  It  was  the 
work  of  thirteen  lesser  sovereignties,  and  not  of  one  great 
sovereignty.  The  thirteen  states  have  never  yet  been  fused 
into  one  common  mass.  There  is  no  act  by  which  the 
people  of  them  respeet'u'fhj  have  put  off  their  separate  so- 
vereignty, and  been  melted  into  one  whole.  They  still 
retain  that  sovereignty,  and  are,  and  have  ever  been  in  the 
actual  exercise  of  it,  except  so  far  as  they  disrobed  thcm- 
selves,  hy  the  grant  of  certain  powers  to  the  government  of 
the  United  States.  All  other  powers  are  reserved  to  the 
14 


158  LECTURES    ON 

states  respectively ,  or  to  the  people ;  a  significant  expres- 
sion, denoting  a  continued  distinctness  of  the  several  sove- 
reignties composing  this  great  confederacy. 

I  have  not  thought  it  necessary  in  this  examination  of 
the  character  of  the  government  to  array  the  arguments  of 
the  authors  of  the  Federalist  on  the  subject,  demonstrating 
that  the  constitution  of  the  United  States  is  partly  national 
and  partly  federal ;  since  they  have  been  so  recently  the 
subject  of  your  studies,  as  to  be  fresh  in  your  recollec- 
tions. But  it  would  be  improper  not  to  advert  to  the  let- 
ter of  the  convention  to  congress,  in  which  it  is  declared 
"  to  be  obviously  impracticable  in  the  federal  government 
of  these  states"  (still  recognizing  their  political  character) 
"  to  secure  all  rights  of  independent  sovereigntij  to  each, 
and  yet  provide  for  the  interest  and  safety  of  all.  Indivi- 
duals entering  into  society  must  give  up  a  share  of  liberty 
to  preserve  the  rest."  And  so  it  was  necessary  to  give  up 
a  part  of  the  rights  of  independent  sovereignty  to  secure 
the  residue.  But  it  is  obvious,  from  the  whole  letter,  that 
the  convention  looked  upon  their  act  as  the  act  of  the 
states,  and  not  of  individuals.  "  The  constitution,"  savs 
the  Federalist,  "  is  founded  indeed,  on  the  assent  and  rati- 
fication of  the  people  of  America,  given  by  delegates  elect- 
ed for  the  special  purpose :  but  this  assent  and  ratification 
is  to  be  given  by  the  whole  people,  not  as  individuals  com- 
posing one  entire  nation,  but  as  composing  the  distinct  and 
independent  states,  to  which  they  respectively  belong.  It 
is  to  be  the  ass(;nt  and  ratification  of  the  several  states,  de- 
rived from  the  supreme  authority  in  each  state,  the  people 
THEMSELVES.  The  act,  therefore,  establishing  the  consti- 
tution    will    not    be    a    national,    but    a    FEDERAL    ACT." 

Such  is  the  language  of  the  Federalist, (c)  written  pending 
the  controversies  respecting  the  constitution,  to  reconcile 
the  people  to  the  plan  of  government,  and  to  remove  among 
others,  the  vital  objection,  that  it  was  national,  and  not  fe- 
deral in  its  character.  In  like  manner,  one  of  the  authors 
of  those  papers,  at  a  later  date,  tells  us  that  the  constitu- 
tion of  the  United  Statu^.  "  was  not  formed  by  a  majority 
of  the  people  of  the  United  States,  as  a  single  community, 
in  the  manner  of  a  consolidated  government.  It  was  formed 

(c)  No.  39. 


CONSTITUTIONAL    LAW.  159 

by  the  states,  that  is,  by  the  people  in  each  of  the  states, 
acting  in  their  highest  sovereign  capacity,  and  formed  con- 
sequently by  the  same  authority  which  formed  the  state 
constitutions. "(rf) 

With  these  prominent  evidences  before  him,  it  is  truly  re- 
markable that  judge  Story  should  have  ventured  on  the 
assertion, (e)  that  although  the  opponents  of  the  constitu- 
tion, on  many  occasions,  pressed  the  objection  that  it 
was  a  consolidated  government,  and  contrasted  it  with  a 
confederative,  yet  none  of  its  advocates  pretended  to  deny 
that  its  design  was  to  establish  a  national  government ,  as  con- 
tradistinguished from  a  mere  league  or  treaty,  however  they 
might  oppose  the  suggestion  that  "  it  was  a  consolidation 
of  the  states."  The  passage  already  quoted  from  the  Fe- 
deralist proves  that  those  papers  alleged  it  "  not  to  be  a 
national  but  a  federal  act."  And  Mr.  Madison,  an  advo- 
cate for  the  constitution  in  the  Virginia  convention, (y)  ob- 
viously using  the  word  "  consolidated"  as  "  national,"  ob- 
serves, "  I  conceive,  myself,  the  government  is  of  a  mixed 
nature.  In  some  respects  it  is  of  a  federal  nature,  in  others 
it  is  of  a  consolidated  nature.  Who  are  parties  to  it?  The 
people ;  but  not  the  people  as  composing  one  great  body, 
but  the  people  as  composing  thirteen  sovereignties."  And 
if  this  be  so,  how  can  the  government  be  otherwise  than 
the  act  of  the  states  as  distinct  sovereignties?  "If,"  he 
continues,  "  it  were  a  consolidated"  [i.  e.  national]  "  go- 
vernment, the  assent  of  a  majority  of  the  people  would  be 
sufficient  for  its  establishment, (^)  and  as  a  majority  [of 
the  whole  people  of  the  United  States]  have  adopted  it  al- 
ready, the  remaining  states  would  be  bound  by  the  act  of 
that  majority,  even  if  they  unanimously  reprobated  it,  and 
it  would  be  now  binding  on  this  state  without  its  having 
had  the  privilege  of  deliberation   on   it :  but  as  it   is,  no 

{d)  Mr.  Madison's  letter,  quoted  1  Story  334. 

(c)  Pa.  325. 

(/)  Debates  '76. 

(«')  And  so  now  for  its  abolition.  But  who  will  admit  this  power 
in  the  majority  of  the  people  of  the  Union,  to  abroorate  by  their 
voices  this  constitution,  ordained  and  established  by  states  ?  Who 
will  admit  that  the  unanimous  vote  of  three  fourths  of  the  popu- 
lation of  the  whole  United  States,  can  abrogate,  or  even  alter  the 
constitution,  without  the  assent  of  tliree  fourths  of  the  states  them- 
selves in  their  political  capacity  ? 


160  LECTURES    ON 

state  is  bound  by  it,  witliout  its  own  consent.  Should  all 
the  states  adopt  it,  it  will  then  be  a  government  established 
by  the  thirteen  states  of  America,  not  through  the  inter- 
vention of  the  legislatures,  but  by  the  people  at  large." 

2.  I  proceed  now  to  my  second  proposition,  that  if  the 
states  were  sovereign  at  the  time  of  the  adoption  of  the 
constitution  of  the  United  States,  no  constitution  could 
have  been  made  (without  the  assent  of  those  sovereign- 
ties).(A)     They  are  consequently  parties  to  it. 

And  here  it  may  be  necessary  to  refer  to  the  well  known 
distinction  between  the  ordinary  legislature,  and  the  sove- 
reignty in  each  state.  The  legislature  is  not  the  sovereign 
power,  though  it  represents  it  in  the  matters  committed  to 
its  authority.  The  2)eople  of  each  state  is  the  sovereign 
power  of  that  state;  and  the  proposition  therefore  means 
that  no  constitution  for  the  Union  could  have  been  adopted 
without  the  assent  of  the  people  of  each  state,  as  distinct 
and  independent  sovereignties.  Such  they  were  under  the 
confederation,  which  recognized  and  declared  the  fact,  if 
it  could  have  been  reasonably  doubted  before.  But  they 
would  not  have  been  sovereign,  if  the  people  of  the  rest  of 
the  Union  could  have  bound  them  without  their  own  as- 
sent. Now,  if  their  assent  was  necessary ;  if  the  consti- 
tution could  not  have  been  ordained  without  it,  the  consti- 
tution is  the  result  of  state  action  ;  it  is  the  creature  of  the 
states,  and  the  states  are  consequently  the  parties  to  it. 

3.  If  the  constitution  be  the  result  of  state  action,  and 
if  the  sT.^TEs  are  parties  to  it,  the  constitution  is  a  com- 
pact. And  this  seems  sufficiently  obvious,  since  the  only 
method  by  which  joint  action  between  several  states  can 
take  place,  is  compact  or  agreement. 

What  then  was  the  compact  or  agreement  between  the 
thirteen  states  in  the  adoption  of  the  constitution  ?  I  have 
already  intimated  the  opinion,  that  the  form  or  system  of 
government  was  rather  the  result  of  the  compact,  than  the 
compact  itself  The  compact  is  to  be  found  in  the  first 
clause,  by  which  it  was  agreed  between  the  states  to  estab- 
lish a  particular  form  of  government.  This  was  a  com- 
pact between  the  states  with  each  other,  and  not  between 

{k)  See  Upshur's  Review,  58.  There  is  no  power  to  change  a 
o-overnment  except  the  power  which  formed  it. 


CONSTITUTIONAL    LAW.  161 

the  11  and  their  servants,  appointed  by  them  to  administer 
the  proposed  government.  These  are  but  their  agents,  and 
their  illegal  acts  are  to  be  corrected  by  the  remedies  pre- 
scribed by  the  constitution.  An  attention  to  this  distinc- 
tion will  relieve  us  from  much  difficulty  hereafter  in  con- 
sidering some  interesting  questions. 

After  this  tedious  examination,  I  shall  close  these  re- 
marks on  this  part  of  our  subject,  with  a  further  extract 
from  judge  Upshur's  masterly  discussion  of  it: 

"  The  third  division  of  the  work  commences  with  a  his- 
tory of  the  adoption  of  the  constitution.  This,  also,  is  gi- 
ven in  an  abridged  form  ;  but  it  omits  nothing  which  can 
be  considered  material  to  the  enquiry.  Perhaps  the  au- 
thor has  fallen  into  one  error,  an  unimportant  one,  certain- 
ly, in  stating  that,  '  at  the  time  and  place  appointed,  the 
representatives  of  twelve  states  assembled.'  When  the  de- 
puties first  met  in  Philadelphia,  in  May  1787,  the  repre- 
sentatives of  only  ni7ie  states  appeared ;  they  were,  soon 
after,  joined  by  those  of  three  others.  The  author  next 
proceeds  to  state  the  various  objections  which  were  urged 
against  the  constitution,  with  the  replies  thereto ;  to  exa- 
mine the  nature  of  that  instrument;  to  ascertain  whether 
it  be  a  compact  or  not;  to  enquire  who  is  the  final  judge 
or  interpreter  in  constitutional  controversies ;  to  lay  down 
rules  of  interpretation ;  and,  finally,  to  examine  the  con- 
stitution in  its  several  departments  and  separate  clauses. 
In  the  execution  of  this  part  of  his  task,  he  has  displayed 
great  research,  laborious  industry,  and  extensive  judicial 
learning.  The  brief  summary  which  he  has  given  of  the 
arguments  by  which  the  constitution  was  assailed  on  the 
one  hand,  and  defended  on  the  other,  is  not  only  interest- 
ing as  matter  of  history,  but  affords  great  aid  in  under- 
standing that  instrument.  We  should  be  careful,  however, 
not  to  attach  to  these  discussions  an  undue  importance. 
All  the  members  of  the  various  conventions,  did  not  en- 
gage in  the  debates,  and,  of  course,  we  have  no  means  of 
determining  by  what  process  of  reasoning  they  were  led  to 
their  conclusions.  And  we  cannot  reasonably  suppose, 
that  the  debaters  always  expressed  their  deliberate  and 
well  weighed  opinions  in  all  the  arguments,  direct  and  col- 
lateral, by  which  they  sought  to  achieve  a  single  great  pur- 
14* 


163  LECTURES    ON 

pose.  We  are  not,  therefore,  to  consider  the  constitution 
as  the  one  thing  or  the  other,  merely  because  some  of  the 
framers,  or  some  of  the  adopters  of  it,  chose  so  to  charac- 
terize it  in  their  debates.  Their  arguments  are  valuable 
as  guides  to  our  judgments,  but  not  as  authority  to  bind 
them. 

"  In  the  interpretation  of  the  constitution,  the  author 
founds  himself,  whenever  he  can,  upon  the  authority  of  the 
supreme  court.  This  was  to  be  expected ;  for,  in  so  do- 
ing, he  has,  in  most  cases,  only  reiterated  his  own  judicial 
decisions.  We  could  not  suppose  that  one,  whose  opinions 
are  not  lightly  adopted,  would  advance,  as  a  commentator, 
a  principle  which  he  rejected  as  a  judge.  In  most  cases, 
too,  no  higher  authority  in  the  interpretation  of  the  con- 
stitution is  known  in  our  systems,  and  none  better  could 
be  desired.  It  is  only  in  questions  of  political  power,  in- 
volving the  rights  of  the  states  in  reference  to  the  federal 
government,  that  any  class  of  politicians  are  disposed  to 
deny  the  authority  of  the  judgments  of  the  supreme  court. 
We  shall  have  occasion  to  examine  this  subject  more  at 
large,  in  a  subsequent  part  of  this  review. 

"  In  discussing  the  various  clauses  of  the  constitution, 
the  author  displays  great  research,  and  a  thorough  ac- 
quaintance with  the  history  of  that  instrument.  It  is  not 
{)erceived,  however,  that  he  has  presented  any  new  views 
of  it,  or  offered  any  new  arguments  in  support  of  the  con- 
structions which  it  has  heretofore  received.  Asa  compen- 
dium of  what  others  have  said  and  done  upon  the  subject, 
his  work  is  very  valuable.  It  facilitates  investigation, 
whilst,  at  the  same  time,  it  is  so  full  of  matter,  as  to  ren- 
der little  fiirther  investigation  necessary.  Even  in  this  view 
of  the  subject,  however,  it  would  have  been  much  more  va- 
luable, if  it  had  contained  references  to  the  authorities  on 
which  its  various  positions  are  founded,  instead  of  merely 
extracting  their  substance.  The  reader  who,  with  this 
book  as  his  guide,  undertakes  to  acquaint  himself  with  the 
constitution  of  the  United  States,  must  take  the  authority 
of  the  author  as  conclusive,  in  most  cases;  or  else  he  will 
often  tind  himself  perplexed  to  discover  the  sources  from 
which  he  derives  his  information.  This  is  a  great  defect 
in  a  work  of  this  sort,  and  is  the  less  excusable,  because  it 
might  have  been  easily  avoided.    A  writer  who  undertakes 


CONSTITUTIONAL    LAW.  163 

to  furnish  a  treatise  upon  a  frame  of  government,  in  rela- 
tion to  which  great  and  contested  political  questions  have 
arisen,  owes  it  alike  to  his  reader  and  to  himself,  to  name 
the  sources  whence  he  draws  whatever  information  he  ven- 
tures to  impart,  and  the  authorities  upon  which  he  founds 
whatever  opinions  he  ventures  to  inculcate.  The  reader  re- 
quires this  for  the  satisfaction  of  his  own  judgment;  and 
the  writer  ought  to  desire  it  as  affording  the  best  evidence 
of  his  own  truth  and  candour. 

"  In  this  division  of  the  work,  the  author  pursues  the 
idea  cautiously  hinted  in  the  first  division,  and  more  plainly 
announced  in  the  second  ;  and  he  now  carries  it  boldly  out 
in  its  results.  Having  informed  us  that,  as  colonies,  we 
were  '  for  many  purposes  one  people,'  and  that  the  decla- 
ration of  independence  made  us  '  a  nation  de  facto,'  he 
now  assumes  the  broad  ground  that  this  '  one  people,'  or 
nation  de  facto,  formed  the  constitution  under  which  we 
live.  The  consequences  of  this  position  are  very  apparent 
throughout  the  remainder  of  the  work.  The  inferences 
fairly  deduced  from  it,  impart  to  the  constitution  its  dis- 
tinctive character,  as  the  author  understands  it ;  and,  of 
course,  if  this  fundamental  position  be  wrong,  that  instru- 
ment is  not,  in  many  of  its  provisions,  what  he  represents 
it  to  be.  The  reader,  therefore,  should  settle  this  question 
for  himself  in  the  outset ;  because,  if  he  differ  from  the 
,  author  upon  this  point,  he  will  be  compelled  to  reject  by 
far  the  most  important  part  of  the  third  and  principal  divi- 
sion of  these  commentaries. 

"The  opinion,  that  the  constitution  was  formed  by  'the 
people  of  the  United  States,'  as  contradistinguished  from 
the  people  of  the  several  states,  that  is,  as  contradistin- 
guished from  the  states  as  such,  is  founded  exclusively  on 
the  particular  terms  of  the  preamble.  The  language  is, 
'  We,  the  people  of  the  United  States,  do  ordain  and  estab- 
lish this  constitution  for  the  United  States  of  America.' 
'  The  people  do  ordain  and  establish,  not  contract  and  sti- 
pulate with  each  other.  The  people  of  the  United  States, 
not  the  distinct  people  of  a  particular  state,  with  the  peo- 
ple of  the  other  states.'  In  thus  relying  on  the  language 
of  the  preamble,  the  author  rejects  the  lights  of  history  al- 
together. I  will  endeavour  in  the  first  place  to  meet  him 
on  his  own  ground. 


164  LECTURES    ON 

"  It  is  an  admitted  rule,  that  the  preamble  of  a  statute 
may  be  resorted  to  in  the  construction  of  it;  and  it  may, 
of  course,  be  used  to  the  same  extent  in  the  construction 
of  a  constitution,  which  is  a  supreme  law.  But  the  only 
purpose  for  which  it  can  be  used  is  to  aid  in  the  discovery 
of  the  true  object  and  intention  of  the  law,  where  these 
would  otherwise  be  doubtful.  The  preamble  can,  in  no 
case,  be  allowed  to  contradict  the  law,  or  to  vary  the  mean- 
ing of  its  plain  language.  Still  less  can  it  be  used  to  change 
the  true  character  of  the  laio-making  poioer.  If  the  pre- 
amble of  the  constitution  had  declared  that  it  was  made  by 
the  people  of  France  or  England,  it  might,  indeed,  have 
been  received  as  evidence  of  that  fact,  in  the  absence  of 
all  proof  to  the  contrary ;  but  surely  it  would  not  be  so 
received  against  the  plain  testimony  of  the  instrument  it- 
self, and  the  authentic  history  of  the  transaction.  If  the 
convention  which  formed  the  constitution  was  not,  in  point 
of  fact,  a  convention  of  the  people  of  the  United  States,  it 
had  no  right  to  give  itself  that  title;  nor  had  it  any  right 
to  act  in  that  character,  if  it  was  appointed  by  a  different 
power.  And  if  the  constitution,  when  formed,  was  adopt- 
ed by  the  several  states,  acting  through  their  separate  con- 
ventions, it  is  historically  untrue  that  it  was  adopted  by  the 
aggregate  people  of  the  United  States.  The  preamble, 
therefore,  is  of  no  sort  of  value  in  settling  this  question ; 
and  it  is  matter  of  just  surprise  that  it  should  be  so  often 
referred  to,  and  so  pertinaciously  relied  on,  for  that  pur- 
pose. History  alone  can  settle  all  difficulties  upon  this 
subject. 

"The  history  of  the  preamble  itself  ought  to  have  con- 
vinced our  author,  that  tiie  inference  which  he  draws  from 
it  could  not  be  allowed.  On  the  6th  of  August  1787,  the 
committee  appointed  for  that  purpose,  reported  the  first 
draft  of  a  constitution.  The  preamble  was  in  these  words  : 
*  We,  the  people  of  the  states  of  New  Hampshire,  Massa- 
chusetts, Rhode  Island  and  Providence  Plantations,  Con- 
necticut, New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina  and 
Georgia,  do  ordain,  declare  and  establish  the  following  con- 
stitution, for  the  government  of  ourselves  and  our  poste- 
rity.' (1  Elliot's  Debates,  255.)  On  the  very  next  day 
this  preamble  was  unanimously  adopted ;  and  the  reader 


CONSTITUTIONAL    LAW.  165 

will  at  once  perceive,  that  it  carefully  preserves  the  dis- 
tinct sovereignty  of  the  states,  and  discountenances  all 
idea  of  consolidation.  (76.  263.)  The  draft  of  the  con- 
stitution thus  submitted  was  discussed,  and  various  altera- 
tions and  amendments  adopted,  (but  without  any  change 
in  the  preamble,)  until  the  8th  of  September  1787,  when 
the  following  resolution  was  passed  :  '  It  was  moved  and 
seconded  to  appoint  a  committee  of  five,  to  revise  the  style 
of,  and  arrange  the  articles  agreed  to,  by  the  house ;  which 
passed  in  the  affirmative.'  (/6.  324.)  It  is  manifest  that 
this  committee  had  no  power  to  change  the  meaning  of  any 
thing  which  had  been  adopted,  but  were  authorized  merely 
to  '  revise  the  style,'  and  arrange  the  matter  in  proper  or- 
der. On  the  12th  of  the  same  month  they  made  their  re- 
port. The  preamble,  as  they  reported  it,  is  in  the  follow- 
ing words  :  '  We,  the  people  of  the  United  States,  in  or- 
der to  form  a  more  perfect  union,  to  establish  justice,  in- 
sure domestic  tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  do  ordain  and  estab- 
lish this  constitution  for  the  United  States  of  America.' 
{lb.  326.)  It  does  not  appear  that  any  attempt  was  made 
to  change  this  phraseology  in  any  material  point,  or  to  re- 
instate the  original.  The  presumption  is,  therefore,  that 
the  two  were  considered  as  substantially  the  same,  par- 
ticularly as  the  committee  had  no  authority  to  make  any 
change,  except  in  the  style.  The  difference  in  the  mere 
phraseology  of  the  two  was  certainly  not  overlooked ;  for 
on  the  13th  Septem.ber  1787,  '  it  was  moved  and  seconded 
to  proceed  to  the  comparing  of  the  report  from  the  com- 
mittee of  revision,  with  the  articles  which  were  agreed  to 
by  the  house,  and  to  them  referred  for  arrangement ;  which 
passed  in  the  affirmative.  And  the  same  was  read  by  pa- 
ragraphs, compared,  and,  in  some  places,  corrected  and 
amended.'  {lb.  338.)  In  what  particulars  these  correc- 
tions and  amendments  were  made,  we  are  not  very  dis- 
tinctly informed.  The  only  change  which  was  made  in 
the  preamble  was  by  striking  out  the  word  '  to,'  before 
the  words  'establish  justice;'  and  the  probability  is,  that 
no  other  change  was  made  in  any  of  the  articles,  except 
such  as  would  make  'the  report  of  the  committee  of  revi- 
sion'— '  correspond    with   the    articles   agreed   to  by  the 


166  LECTURES    ON 

house.'  The  inference,  therefore,  is  irresistible,  that  the 
convention  considered  the  preamble  reported  by  the  com- 
mittee of  revision,  as  substantially  corresponding  with  the 
original  draft,  as  unanimously  '  agreed  to  by  the  house.' 

"  There  is,  however,  another  and  a  perfectly  conclusive 
reason  for  the  change  of  phraseology,  from  the  states  by 
name,  to  the  more  general  expression  '  the  United  States ;' 
and  this,  too,  without  supposing  that  it  was  intended  there- 
by to  convey  a  different  idea  as  to  the  parties  to  the  con- 
stitution. The  revised  draft  contained  a  proviso,  that  the 
constitution  should  go  into  operation  when  adopted  and 
ratified  by  nine  states.  It  was,  of  course,  uncertain  whe- 
ther more  than  nine  would  adopt  it,  or  not;  and  if  they 
should  not,  it  would  be  altogether  improper  to  name  them 
as  parties  to  that  instrument.  As  to  one  of  them,  Rhode 
Island,  she  was  not  even  represented  in  the  convention,  and, 
consequently,  the  others  had  no  sort  of  right  to  insert  her 
as  a  party.  Hence  it  became  necessary  to  adopt  a  form  of 
expression  which  would  apply  to  those  who  should  ratify 
the  constitution,  and  not  to  those  who  should  refuse  to  do 
so.  The  expression  actually  adopted  answers  that  purpose 
fully.  It  means  simply,  '  We,  the  people  of  those  states 
who  have  united  for  that  purpose,  do  ordain,'  &-c.  This 
construction  corresponds  with  the  historical  fact,  and  re- 
conciles the  language  employed  with  the  circumstances  of 
the  case.  Indeed,  similar  language  was  not  unusual, 
through  the  whole  course  of  the  revolution.  '  The  people 
of  his  majesty's  colonies,' — '  the  people  of  the  United  Co- 
lonies,'— '  the  people  of  the  United  States,'  are  forms  of 
expression  which  frequently  occur,  without  intending  to 
convey  any  other  idea  than  that  of  the  people  of  the  seve- 
ral colonies  or  states. 

"  It  is,  perhaps,  not  altogether  unworthy  of  remark,  in 
reference  to  this  enquiry,  that  the  word  '  people'  has  no 
plural  termination  in  our  language.  If  it  had,  the  proba- 
bility is  that  the  expression  would  have  been  '  we,  the  peo- 
ples,' conveying,  distinctly,  the  idea  of  the  people  of  the 
several  states.  But,  as  no  such  plural  termination  is  known 
in  our  language,  the  least  that  we  can  say  is,  that  the  loant 
of  it  affords  no  argument  in  favour  of  the  author's  position. 
"This  brief  history  of  the  preamble,  collected  from  the 
Journals  of  the  Convention,  will  be  sufficient  to  shew  that 


CONSTITUTIONAL    LAW.  167 

the  author  has  allowed  it  an  undue  influence  in  his  con- 
struction of  the  constitution.  It  is  not  from  such  vague 
and  uncertain  premises,  that  conclusions,  so  important  and 
controlling,  can  be  wisely  drawn.  The  author,  however, 
is  perfectly  consistent  with  himself  in  the  two  characters 
in  which  he  appears  before  us  ;  the  commentator  takes  no 
ground  which  the  judge  does  not  furnish.  It  is  remarka- 
ble that  although  this  question  was  directly  presented  in 
the  case  of  Martin  v.  Hunter's  lessees,  and  although  the 
fact,  that  the  constitution  of  the  United  States  '  was  or- 
dained and  established,  not  by  the  states  in  their  sovereign 
capacities,  but  emphatically  by  the  people  of  the  United 
States,'  is  made  the  foundation  of  the  judgment  of  the 
supreme  court  in  that  case;  yet,  judge  Story,  in  deliver- 
ing the  opinion  of  the  court,  rests  that  position  upon 
the  preamble  alone,  and  offers  no  other  argument  what- 
ever to  support  it.  And  this  too,  although,  in  his  own 
opinion,  upon  the  right  decision  of  that  case  rested  '  some 
of  the  most  solid  principles  which  have  hitherto  been 
supposed  to  sustain  and  protect  the  constitution  of  the 
United  States.'  It  is  much  to  be  regretted,  that  principles 
so  important  should  be  advanced  as  mere  dogmas,  either 
by  our  judges,  or  by  the  instructers  of  our  youth. 

"  In  this  case,  as  in  others,  however,  we  ought  not  to  be 
satisfied  with  simply  proving  that  the  author's  conclusions 
are  not  warranted  by  the  facts  and  arguments  from  which 
he  derives  them.  Justice  to  the  subject  requires  a  much 
more  full  and  detailed  examination  of  this  important  and 
fundamental  question. 

"  I  have  endeavoured  to  shew,  in  the  preceding  part  of 
this  review,  that  the  people  of  the  several  states,  while  in 
a  colonial  condition,  were  not  'one  people'  in  any  political 
sense  of  the  terms ;  that  they  did  not  become  so  by  the  de- 
claration of  independence,  but  that  each  state  became  a 
complete  and  perfect  sovereignty  within  its  own  limits ; 
that  the  revolutionary  government,  prior  to  the  establish- 
ment of  the  confederation,  was,  emphatically,  a  government 
of  the  states  as  such,  through  congress,  as  their  common 
agent  and  representative,  and  that,  by  the  articles  of  con- 
federation, each  state  expressly  reserved  its  entire  sove- 
reignty and  independence.  In  no  one  of  the  various  con- 
ditions, through  which  we  have  hitherto  traced  them,  do 


168  LECTURES    ON 

we  perceive  any  feature  of  consolidation;  but  their  cha- 
racter as  distinct  and  sovereign  states  is  always  carefully 
and  jealously  preserved.  We  are,  then,  to  contemplate 
them  as  sovereign  states,  when  the  first  movements  towards 
the  formation  of  the  present  constitution  were  made. 

"Our  author  has  given  a  correct  history  of  the  preparatory 
steps  towards  the  call  of  a  convention.  It  was  one  of  those 
remarkable  events,  (of  which  the  history  of  the  world  af- 
fords many  examples,)  which  have  exerted  the  most  im- 
portant influence  upon  the  destiny  of  mankind,  and  yet 
have  sprung  from  causes  which  did  not  originally  look  to 
any  such  results.  It  is  true,  the  defects  of  the  confedera- 
tion, and  its  total  inadequacy  to  the  purposes  of  an  effective 
government,  were  generally  acknowledged ;  but  I  am  not 
aware  that  any  decisive  step  was  taken  in  any  of  the  states, 
for  the  formation  of  a  better  system,  prior  to  the  year  178G. 
In  that  year,  the  difficulties  and  embarrassments  under 
which  our  trade  suffered,  in  consequence  of  the  conflicting 
and  often  hostile  commercial  regulations  of  the  several 
states,  suggested  to  the  legislature  of  Virginia  the  necessity 
of  forming  among  all  the  states  a  general  system,  calcu- 
lated to  advance  and  protect  the  trade  of  all  of  them. 
They  accordingly  appointed  commissioners,  to  meet,  at 
Annapolis,  commissioners  from  such  of  the  other  states  as 
should  approve  of  the  proceeding,  for  the  purpose  of  pre- 
paring a  uniform  plan  of  commercial  regulations,  which 
was  to  be  submitted  to  all  the  states,  and,  if  by  them  rati- 
fied and  adopted,  to  be  executed  by  congress.  Such  of 
the  commissioners  as  met,  however,  soon  discovered  that 
the  execution  of  the  particular  trust  with  which  they  were 
clothed,  involved  other  subjects  not  within  their  commis- 
sion, and  which  could  not  be  properly  adjusted  without  a 
great  enlargement  of  their  powers.  They  therefore  sim- 
I)ly  reported  this  fact,  and  recommended  to  their  respective 
legislatures  to  appoint  delegates  to  meet  in  general  conven- 
tion in  Philadelphia,  for  the  purpose  not  merely  of  forming 
a  uniform  system  of  commercial  regulations,  but  of  re- 
forming the  government  in  any  and  every  particular  in 
which  the  interests  of  the  states  might  require  it.  This 
report  was  also  transmitted  to  congress,  who  approved  of 
the  recommendation  it  contained,  and  on  the  21st  of  Feb- 
ruary 1787,  resolved,  '  that  in  the  opinion  of  congress  it 


CONSTITUTIONAL    LAW.  169 

is  expedient  that  on  the  second  Monday  in  May  next,  a 
convention  of  delegates,  who  shall  have  been  appointed  by 
the  several  states,  be  held  at  Philadelphia,  for  the  sole  and 
express  purpose  of  revising  the  articles  of  confederation, 
and  reporting  to  congress  and  the  several  legislatures,  such 
alterations  and  provisions  therein,  as  shall,  when  agreed 
to  in  congress,  and  conjirmed  by  the  states,  render  the  fe- 
deral constitution,  adequate  to  the  exigencies  of  govern- 
ment, and  the  preservation  of  the  union.'  (1  Elliot's  De- 
bates, 155.) 

"Such  was  the  origin  of  the  convention  of  1787.  It  is 
apparent  that  the  delegates  to  that  body  were  to  be  '  ap- 
pointed by  the  several  states,'  and  not  by  '  the  people  of 
the  United  States ;'  that  they  were  to  report  their  proceed- 
ings to  '  congress  and  the  several  legislatures,'  and  not  to 
'the  people  of  the  United  States;'  and  that  their  proceed- 
ings were  to  be  part  of  the  constitution,  only  when  '  agreed 
to  in  congress  and  confirmed  by  the  states,'  and  not 
when  confirmed  by  '  the  people  of  the  United  States.'  Ac- 
cordingly, delegates  were,  in  point  of  fact,  appointed  by 
the  states;  those  delegates  did,  in  point  of  fact,  report  to 
congress  and  the  states  ;  and  congress  did,  in  point  of  fact, 
approve,  and  the  states  did,  in  point  of  fact,  adopt,  ratify 
and  confirm  the  constitution  which  they  formed.  No  other 
agency  than  that  of  the  states  as  such,  and  of  congress, 
which  was  strictly  the  representative  of  the  states,  is  to  be 
discerned  in  any  part  of  this  whole  proceeding.  We  may 
well  ask,  therefore,  from  what  unknown  source  our  author 
derives  the  idea,  that  the  constitution  was  formed  by  '  the 
people  of  the  United  States,'  since  the  history  of  the  trans- 
action, even  as  he  has  himself  detailed  it,  proves  that  'the 
people  of  the  United  States,'  did  not  appoint  delegates  to 
the  convention,  were  not  represented  in  that  body,  and  did 
not  adopt  and  confirm  its  act  as  their  own  ! 

"  Even,  however,  if  the  question  now  before  us  be  not, 
merely  and  exclusively,  a^question  of  historical  fact,  there 
are  other  views  of  it  scarcely  less  decisive  against  our  au- 
thor's position.  In  the  first  place,  I  have  to  remark,  that 
there  ivere  no  such  people  as  '  the  people  of  the  United  States,' 
in  the  sense  in  which  he  uses  those  terms.  The  articles 
of  confederation  formed,  at  that  time,  the  only  government 
of  the  United  States ;  and,  of  course,  we  are  to  collect 
15 


170  LECTURES    ON 

from  them  alone  the  true  nature  of  the  connexion  of  the 
states  with  one  another.  Without  deeming  it  necessary  to 
enumerate  all  the  powers  which  they  conferred  on  con- 
gress, it  is  sufficient  to  remark  that  they  were  all  exercised 
in  the  name  of  the  states,  as  free,  sovereign  and  indepen- 
dent states.  Congress  was,  in  the  strictest  sense,  the  re- 
presentative of  the  states.  The  members  were  appointed 
by  the  states,  in  whatever  mode  each  state  might  choose, 
without  reference  either  to  congress  or  the  other  states. 
They  could,  at  their  own  will  and  pleasure,  recall  their  re- 
presentatives, and  send  others  in  their  places,  precisely  as 
any  sovereign  may  recall  his  minister  at  a  foreign  court. 
The  members  voted  in  congress  by  states,  each  state  hav- 
ing one  vote,  whatever  might  be  the  number  of  its  repre- 
sentatives. There  was  no  president,  or  other  common  exe- 
cutive head.  The  states  alone,  as  to  all  the  more  impor- 
tant operations  of  the  government,  were  relied  on  to  exe- 
cute the  resolves  of  congress.  In  all  this,  and  in  oilier 
features  of  the  confederation,  which  it  is  unnecessary  to 
enumerate,  we  recognize  a  league  between  independent 
sovereignties,  and  not  one  nation  composed  of  all  of  them 
together.  It  would  seem  to  follow,  as  a  necessary  conse- 
quence, that  if  the  states,  thus  united  together  by  league, 
did  not  form  one  nation,  there  could  not  be  a  citizen  or 
subject  of  that  nation.  Indeed,  congress  had  no  potcer  to 
make  such  citizen,  either  by  naturalization  or  otherwise. 
It  is  true,  the  citizens  of  every  state  were  entitled,  with 
certain  exceptions,  such  as  paupers,  vagabonds,  &c.  to  all 
the  privileges  of  citizens  of  every  other  state,  when  with- 
in the  territories  thereof;  but  this  was  by  express  compact 
in  the  articles  of  confederation,  and  did  not  otherwise  re- 
sult from  the  nature  of  their  political  connexion.  It  was 
only  by  virtue  of  citizenship  in  some  particular  state,  that 
its  citizens  could  enjoy  within  any  other  state  the  rights  of 
citizens  thereof.  They  were  not  known  as  citizens  of  the 
United  States,  in  the  legislation  either  of  congress  or  of 
the  several  states.  He  who  ceased  to  be  a  citizen  of  some 
particular  state,  without  becoming  a  citizen  of  some  other 
particular  state,  forfeited  all  the  rights  of  a  citizen  in  each 
and  all  of  the  states.  There  was  no  one  right  which  the 
citizen  could  exercise,  and  no  one  duty  which  he  could  be 
called  on  to  perform,  except  as  a  citizen  of  some  particu- 


CONSTITUTIONAL    LAW.  171 

lar  state.  In  that  character  alone  could  he  own  real  es- 
tate, vote  at  elections,  sue  or  be  sued  ;  and  in  that  cha- 
racter alone  could  he  be  called  on  to  bear  arms,  or  to  pay 
taxes. 

"  What,  then,  was  this  citizenship  of  the  United  States, 
which  involved  no  allegiance,  conferred  no  right,  and  sub- 
jected to  no  duty  ?  Who  were  '  the  people  of  the  United 
States?'  Where  was  their  domicil,  and  what  were  the  po- 
litical relations,  which  they  bore  to  another  ?  What  was 
their  sovereignty,  and  what  was  the  nature  of  the  allegi- 
ance which  it  claimed?  Whenever  these  questions  shall 
be  satisfactorily  answered  without  designating  tke  people 
of  the  several  states  distinctively  as  such,  1  shall  feel  my- 
self in  possession  of  new  and  unexpected  lights  upon  the 
subject. 

"  Even,  however,  if  we  concede  that  there  was  such  a 
people  as  '  the  people  of  the  United  States,'  our  author's 
position  is  still  untenable.  I  admit  that  the  people  of  any 
country  may,  if  they  choose,  alter,  amend  or  abrogate 
their  form  of  government,  or  establish  a  new  one,  without 
invoking  the  aid  of  their  constituted  authorities.  They 
may  do  this,  simply  because  they  have  the  physical  power 
to  do  it,  and  not  because  such  a  proceeding  would  be  either 
wise,  just,  or  expedient.  It  would  be  revolution  in  the 
strictest  sense  of  the  term.  Be  this  as  it  may,  no  one  ever 
supposed  that  this  course  was  pursued  in  the  case  under 
consideration.  Every  measure,  both  for  the  calling  of  the 
convention,  and  for  the  ratification  of  the  constitution,  was 
adopted  in  strict  conformity  with  the  recommendations,  re- 
solutions and  laws  of  congress  and  the  state  legislatures. 
And  as  '  the  people  of  the  United  States'  did  not,  in  point 
of  fact,  take  the  subject  into  their  own  hands,  independent 
of  the  constituted  authorities,  they  could  not  do  it  by  any 
agency  of  those  authorities.  So  far  as  the  federal  govern- 
ment was  concerned,  the  articles  of  confederation,  from 
which  alone  it  derived  its  power,  contained  no  provision 
by  which  '  the  people  of  the  United  States'  could  express 
authoritatively  a  joint  and  common  purpose  to  change  their 
government.  A  law  of  congress  authorizing  them  to  do 
so  would  have  been  void,  for  want  of  right  in  that  body  to 
pass  it.  No  mode,  which  congress  might  have  prescribed 
for  ascertaining  the  will  of  the  people  upon  the  subject, 


172  LECTURES    ON 

could  have  had  that  sanction  of  legal  authority,  which 
would  have  been  absolutely  necessary  to  give  it  force  and 
effect.  It  is  equally  clear  that  there  was  no  right  or  power 
reserved  to  the  states  themselves,  by  virtue  of  which,  any 
such  authoritative  expression  of  the  common  will  and  pur- 
pose of  the  people  of  oil  the  states  could  have  been  made. 
The  power  and  jurisdiction  of  each  state  were  limited  to 
its  own  territory  ;  it  had  no  power  to  legislate  for  the  peo- 
ple of  any  other  state.  No  single  state,  therefore,  could 
have  effected  such  an  object;  and  if  they  had  all  concur- 
red in  it,  each  acting,  as  it  was  only  authorized  to  act,  /"or 
itself,  that  would  have  been  strictly  the  action  of  the  states 
as  such,  and  as  contradistinguished  from  the  action  of  the 
mass  of  the  people  of  all  the  states.  If  '  the  people  of  the 
United  States'  could  not,  by  any  aid  to  be  derived  from 
their  common  government,  have  effected  such  a  change  in 
their  constitution,  that  government  itself  was  equally  des- 
titute of  all  power  to  do  so.  The  only  clause  in  the  arti- 
cles of  confederation,  touching  this  subject,  is  in  the  fol- 
lowing words :  '  And  the  articles  of  this  confederation 
shall  be  inviolably  observed  by  every  state,  and  the  union 
shall  be  perpetual ;  nor  shall  any  alteration,  at  any  time 
hereafter,  be  made  in  any  of  them,  unless  such  alteration 
be  agreed  to  in  the  congress  of  the  United  States,  and  be 
aftcr7Parcls  confirmed  by  the  legislature  of  every  state.' 
Even  if  this  power  had  been  given  to  congress  alone,  with- 
out subjecting  the  e.xcrcise  of  it  to  the  negative  of  the 
states,  it  would  still  have  been  the  power  of  the  states  in 
their  separate  and  independent  capacities,  and  not  the 
power  of  the  people  of  the  United  States,  as  contradistin- 
guished from  them.  For  congress  was,  as  we  have  already 
remarked,  strictly  the  representative  of  the  states;  and 
each  state,  being  entitled  to  one  vote,  and  one  only,  was 
precisely  eijual,  in  the  deliberations  of  that  body,  to  each 
other  state.  Nothing  less,  therefore,  than  a  majority  of 
the  states,  could  have  carried  the  measure  in  question, 
even  in  congress.  But,  surely  there  can  be  no  doubt  that 
the  power  to  change  their  common  government  was  re- 
served to  the  states  alone,  when  we  see  it  expressly  provi- 
ded that  nothing  less  than  their  unanimous  consent,  as 
states,  should  be  sufficient  to  effect  that  object. 


CONSTITUTIONAL    LAW.  173 

"  There  is  yet  another  view  of  this  subject.  It  results 
from  the  nature  of  all  government,  freely  and  voluntarily 
established,  that  there  is  no  power  to  change,  except  the 
power  which  formed  it.  It  will  scarcely  be  denied  by  any 
one,  that  the  confederation  was  a  government  strictly  of 
the  states,  formed  by  them  as  such,  and  deriving  all  its 
powers  from  their  consent  and  agreement.  What  autho- 
rity was  there,  superior  to  the  states,  which  could  undo 
their  work?  What  power  was  there,  other  than  that  of  the 
states  themselves,  which  was  authorized  to  declare  that 
their  solemn  league  and  agreement  should  be  abrogated  ? 
Could  a  majority  of  the  people  of  all  the  states  have  done 
it?  If  so,  whence  did  they  derive  that  right?  Certainly 
not  from  any  agreement  among  the  states,  or  the  people  of 
all  the  states  ;  and  it  could  not  be  legitimately  derived  from 
any  other  source.  If,  therefore,  they  had  exercised  such 
a  power,  it  would  have  been  a  plain  act  of  usurpation  and 
violence.  Besides,  if  we  may  judge  from  the  apportionment 
of  representation  as  proposed  in  the  convention,  a  majority 
of  the  people  of  all  the  states  were  to  be  found  in  the  four 
states  of  Massachusetts,  New  York,  Pennsylvania  and  Vir- 
ginia ;  so  that,  upon  this  idea,  the  people  of  less  than  one 
third  of  all  the  states  could  change  the  articles  of  confe- 
deration, although  those  articles  expressly  provided  that 
they  should  not  be  changed  without  the  consent  of  all  the 
states!  There  was,  then,  no  power  superior  to  the  power 
of  the  states  ;  and  consequently,  there  was  no  power  which 
could  alter  or  abolish  the  government  which  they  had  es- 
tablished. If  the  constitution  has  superceded  the  articles 
of  confederation,  it  is  because  the  parties  to  those  articles 
have  agreed  that  it  should  be  so.  If  they  have  not  so 
agreed,  there  is  no  such  constitution,  and  the  articles  of 
confederation  are  still  the  only  political  tie  among  the 
states.  We  need  not,  however,  look  beyond  the  attestation 
of  the  constitution  itself,  for  full  evidence  upon  this  point. 
It  professes  to  have  been  '  done  by  the  unanimous  consent 
of  the  states  present,'  &lc.,  and  not  in  the  name  or  by  the 
authority  of  '  the  people  of  the  United  States.' 

"  But  it  is  not  the  mere  framing  of  a  constitution  which 

gives  it  authority  as  such.     It  becomes  obligatory  only  by 

its  adoption  and  ratification ;  and  surely  that  act,  I  speak 

of  free  and  voluntary  government,  makes  it  the  constitu- 

15* 


174  LECTURES    ON 

tion  of  those  only  who  do  adopt  it.  Let  us  ascertian  then, 
from  the  authentic  history  of  the  times,  by  whom  our  con- 
stitution was  adopted  and  ratified. 

"  The  resolution  of  congress  already  quoted,  contem- 
plates a  convention  '  for  the  sole  and  express  purpose  of 
revising  the  articles  of  confederation,'  and  reporting  suit- 
able '  alterations  and  provisions  therein.'  The  proceed- 
ings of  the  convention  were  to  be  reported  to  congress  and 
the  several  legislatures,  and  were  to  become  obligatory, 
only  when  '  agreed  to  in  congress  and  confirmed  by  the 
states.'  This  is  precisely  the  course  of  proceeding  pre- 
scribed in  the  articles  of  confederation.  Accordingly,  the 
new  constitution  was  submitted  to  congress ;  was  by  them 
approved  and  agreed  to,  and  was  afterwards,  in  pursuance 
of  the  recommendation  of  the  convention,  laid  before  con- 
ventions of  the  several  states,  and  by  them  ratified  and 
adopted.  In  this  proceeding,  each  state  acted  for  itself, 
without  reference  to  any  other  state.  They  ratified  at  dif- 
ferent periods ;  some  of  them  unconditionally,  and  others 
with  provisoes  and  propositions  for  amendment.  This  was 
certainly  state  action,  in  as  distinct  a  form  as  can  well  be 
imagined.  Indeed,  it  may  well  be  doubted  whether  any 
other  form  of  ratification,  than  by  the  states  themselves, 
would  have  been  valid.  At  all  events,  none  other  was  con- 
templated, since  the  constitution  itself  provides,  that  it 
shall  become  obligatory,  when  ratified  by  '  nine  states,'  be- 
tween the  states  ratifying  the  same.  '  The  people  of  the 
United  States,'  as  an  aggregate  mass,  are  no  where  appeal- 
ed to,  for  authority  and  sanction  to  that  instrument.  Even 
if  they  could  have  made  it  their  constitution,  by  adopting 
it,  they  could  not,  being  as  they  were  separate  and  distinct 
political  communities,  have  united  themselves  into  one 
mass  for  that  purpose,  without  previously  overthrowing 
their  own  municij)al  governments  ;  and,  even  then,  the  new 
constitution  would  have  been  obligatory  only  on  those  who 
agreed  to  and  adopted  it,  and  not  on  the  rest. 

"  The  distinction  between  the  people  of  the  several  states 
and  the  people  of  the  United  States,  as  it  is  to  be  under- 
stood in  reference  to  the  present  subject,  is  perfectly  plain. 
I  have  already  explained  ihe  terms,  '  a  people,'  when  used 
in  a  political  sense.  The  distinction  of  which  I  speak  may 
be  illustrated  by  a  single  example.    If  the  constitution  had 


CONSTITUTIONAL    LAW.  175 

been  made  by  '  the  people  of  the  United  States,'  a  certain 
portion  of  those  people  would  have  had  authority  to  adopt 
it.  In  the  absence  of  all  express  provision  to  the  contrary, 
we  may  concede  that  a  majority  would,  prima  facie,  have 
had  that  right.  Did  that  majority,  in  fact,  adopt  it?  Was 
it  ever  ascertained  whether  a  majority  of  the  vjhole  people 
were  in  favour  of  it  or  not?  Was  there  any  provision, 
either  of  law  or  constitution,  by  which  it  was  possible  to 
ascertain  that  fact?  It  is  perfectly  well  known  that  there 
was  no  such  provision ;  that  no  such  majority  was  ever  as- 
certained, or  even  contemplated.  Let  us  suppose  that  the 
people  of  the  states  of  Massachusetts,  New  York,  Penn- 
sylvania and  Virginia,  containing,  as  we  have  seen  they 
probably  did,  a  majority  of  the  whole  people,  had  been 
unanimous  against  the  constitution,  and  that  a  bare  majo- 
rity of  the  people  in  each  of  the  other  nine  states,  acting 
in  their  separate  character  as  states,  had  adopted  and  rati- 
fied it.  There  can  be  no  doubt,  that  it  would  have  become 
the  constitution  of  the  United  States  ;  and  that,  too,  by  the 
suffrages  of  a  decided  minority,  probably  not  exceeding 
one  fourth  of  the  aggregate  people  of  all  the  states.  This 
single  example  shews,  conclusively,  that  the  people  of  the 
United  States,  as  contradistinguished  from  the  people  of 
the  several  states,  had  nothing  to  do,  and  could  not  have 
had  any  thing  to  do  with  the  matter. 

"  This  brief  history  of  the  formation  and  adoption  of 
the  constitution,  which  is  familiar  to  the  mind  of  every 
one  who  has  attended  to  the  subject  at  all,  ought,  as  it 
seems  to  me,  to  be  perfectly  satisfactory  and  conclusive ; 
and  should  silence  forever,  all  those  arguments  in  favour  of 
consolidation,  which  are  founded  on  the  preamble  to  that 
instrument.  I  do  not  perceive  with  what  propriety  it  can 
be  said,  that  the  '  people  of  the  United  States,'  formed  the 
constitution,  since  they  neither  appointed  the  convention, 
nor  ratified  their  act,  nor  otherwise  adopted  it  as  obligato- 
ry upon  them.  Even  if  the  preamble  be  entitled  to  all  the 
influence  which  has  been  allowed  to  it,  our  author's  con- 
struction of  its  language  is  not,  as  has  already  been  re- 
marked, the  only  one  of  which  it  is  susceptible.  '  We,  the 
people  of  the  United  States,'  may,  without  any  violence  to 
the  rules  of  fair  construction,  mean  '  we,  the  people  of  the 
states  united.'     In  this  acceptation,  its  terms  conform  to 


176  LECTURES    ON 

the  history  of  the  preamble  itself,  to  that  of  the  whole  con- 
stitution, and  those  who  made  it.  In  any  other  accepta- 
tion, they  are  either  without  meaning,  or  else  they  affirm 
what  history  proves  to  be  false. 

"  It  would  not,  perhaps,  have  been  deemed  necessary  to 
bestow  quite  so  much  attention  on  this  part  of  the  work,  if 
it  were  not  evident  that  the  author  himself  considered  it 
of  great  consequence,  not  as  matter  of  history,  but  as  war- 
ranting and  controlling  his  construction  of  the  constitu- 
tion, in  some  of  its  most  important  provisions.  The  ar- 
gument is  not  yet  exhausted,  and  I  am  aware  that  much  of 
what  I  have  said  is  trite,  and  that  little,  perhaps  no  part  of 
it,  is  new.  Indeed,  the  subject  has  been  so  often  and  so 
ably  discussed,  particularly  in  parliamentary  debates,  that 
it  admits  very  few  new  views,  and  still  fewer  new  argu- 
ments in  support  of  old  views.  It  is  still,  however,  an 
open  question,  and  there  is  nothing  in  the  present  condi- 
tion of  public  opinion,  to  deprive  it  of  any  portion  of  its 
original  importance.  The  idea  that  the  people  of  these 
states  were,  while  colonists,  and,  consequently,  are  now, 
*  one  people,'  in  some  sense  which  has  never  been  explain- 
ed, and  to  some  extent  which  has  never  been  defined,  is 
constantly  inculcated  by  those  who  are  anxious  to  consoli- 
date all  the  powers  of  the  states  in  the  federal  government. 
It  is  remarkable,  however,  that  scarcely  one  systematic  ar- 
gument, and  very  few  attempts  of  any  sort,  have  yet  been 
made  io  prove  this  important  position.  Even  the  vast  and 
clear  mind  of  the  late  chief  justice  of  the  United  States, 
which  never  failed  to  disembarrass  and  elucidate  the  most 
obscure  and  intricate  subject,  appears  to  have  shrunk  from 
this.  In  all  his  judicial  opinions  in  which  the  question  has 
been  presented,  the  unity  or  identity  of  the  people  of  the 
United  States  has  been  taken  as  a  postulatum,  without  one 
serious  attempt  to  prove  it.  The  continued  repetition  of 
this  idea,  and  the  boldness  with  which  it  is  advanced,  have, 
I  am  induced  to  think,  given  it  an  undue  credit  with  the 
public.  Few  men,  far  too  few,  enquire  narrowly  into  the 
subject,  and  even  those  who  do,  are  not  in  general  scepti- 
cal enough  to  doubt  what  is  so  often  and  so  peremptorily 
asserted;  and  asserted,  too,  with  that  sort  of  hardy  confi- 
dence which  seems  to  say,  that  all  argument  to  prove  it 
true  would  be  supererogatory  and  useless.  It  is  not,  there- 


CONSTITUTIONAL    LAW.  177 

fore,  out  of  place,  nor  out  of  time,  to  refresh  the  memory 
of  the  reader,  in  regard  to  those  well  established  histori- 
cal facts,  which  are  sufficient  in  themselves,  to  prove  that 
the  foundation  on  which  the  consolidationists  build  their 
theory  is  unsubstantial  and  fallacious. 

"  I  would  not  be  understood  as  contending,  in  what  I 
have  already  said,  that  the  constitution  is  necessarily  fede- 
rative, merely  because  it  was  made  by  the  states  as  such, 
and  not  by  the  aggregate  people  of  the  United  States.  I 
readily  admit,  that  although  the  previous  system  was  strict- 
ly federative,  and  could  not  have  been  changed  except  by 
the  states  who  made  it,  yet  there  was  nothing  to  prevent 
the  states  from  surrendering,  in  the  provisions  of  the  new 
system  which  they  adopted,  all  their  power,  and  even  their 
separate  existence,  if  they  chose  to  do  so.  The  true  en- 
quiry is,  therefore,  whether  they  have  in  fact  done  so,  or 
not ;  or,  in  other  words,  what  is  the  true  character,  in  this 
respect,  of  the  present  constitution.  In  this  enquiry  the 
history  of  their  previous  condition,  and  of  the  constitution 
itself,  is  highly  influential  and  important." 

"  It  is  worthy  of  remark,  that  of  the  states.  New  Hamp- 
shire and  the  author's  own  state  of  Massachusetts,  express- 
ly call  the  constitution  a  compact,  in  their  acts  of  ratifica- 
tion ;  and  no  other  state  indicates  a  different  view  of  it. 
This  tends  to  prove  that  public  opinion  at  the  time  had  not 
drawn  the  nice  distinction  which  is  now  insisted  on,  be- 
tween a  government  and  a  compact ;  and  that  those  who 
for  eight  years  had  been  living  under  a  compact,  and  form- 
ing treaties  with  foreign  powers  by  virtue  of  its  provisions, 
had  never  for  a  moment  imagined  that  it  was  not  a  govern- 
ment. 

"  But  little  importance,  however,  ought  to  be  attached  to 
reasoning  of  this  kind.  Those  who  contend  that  our  con- 
stitution is  a  compact,  very  properly  place  their  principles 
upon  much  higher  ground.  They  say  that  the  constitution 
is  a  compact,  because  it  tvas  made  by  sovereign  states,  and 
because  that  is  the  only  mode  in  which  sovereign  states  treat 
with  one  another.  The  conclusion  follows  irresistibly  from 
the  premises  ;  and  those  who  would  deny  the  one,  are  bound 
to  disprove  the  other.  Our  adversaries  begirt  to  reason  at 
the  very  point  at  which  reasoning  becomes  no  longer  ne- 
cessary.    Instead  of  disproving  our  premises,  they  assume 


178  LECTURES    ON 

that  they  are  wrong,  and  then  triumphantly  deny  our  con- 
clusion also.  If  we  establish  that  the  constitution  was 
made  by  the  states,  and  that  they  were,  at  the  time,  dis- 
tinct, independent  and  perfect  sovereignties,  it  follows  that 
they  could  not  treat  with  one  another,  even  with  a  view  to 
the  formation  of  a  new  common  government,  except  in 
their  several  and  sovereign  characters.  They  must  have 
maintained  the  same  character,  when  they  entered  upon 
that  work,  and  throughout  the  whole  progress  of  it.  What- 
ever the  government  may  be,  therefore,  in  its  essential  cha- 
racter, whether  a  federative  or  a  consolidative  government, 
it  is  still  a  compact,  or  the  result  of  a  compact,  because 
those  who  made  it  could  not  make  it  in  any  other  way.  In 
determining  its  essential  character,  therefore,  we  are  bound 
to  regard  it  as  a  compact,  and  to  give  it  such  a  construc- 
tion as  is  consistent  with  that  idea.  We  are  not  to  pre- 
sume that  the  parties  to  it  designed  to  change  the  charac- 
ter in  which  they  negotiated  with  one  another.  Every  fair 
and  legitimate  inference  is  otherwise.  Its  sovereignty  is 
the  very  last  thing  which  a  nation  is  willing  to  surrender; 
and  nothing  short  of  the  clearest  proof  can  warrant  us  in 
concluding  that  it  has  surrendered  it.  In  all  cases,  there- 
fore, where  the  language  and  spirit  of  the  constitution  are 
doubtful,  and  even  where  their  most  natural  construction 
would  be  in  favour  of  consolidation,  (if  there  be  any  such 
case,)  we  should  still  incline  against  it,  and  in  favour  of  the 
rights  of  the  states,  unless  no  other  construction  can  be 
admitted. 

"  Having  disposed  of  this  preliminary  question,  we  now 
approach  the  constitution  itself  I  affirm  that  it  is,  in  its 
structure,  a  federative  and  not  a  consolidated  government  ; 
that  it  is  so,  in  all  its  departments,  and  in  all  its  leading 
and  distinguishing  provisions;  and,  of  course,  that  it  is  to 
be  so  interpreted,  by  the  force  of  its  men  terms,  apart  from 
any  influence  to  be  derived  from  that  rule  of  construction 
which  has  just  been  laid  down.  We  will  first  examine  it 
in  the  structure  of  its  several  departments. 

"  The  Legislature. — This  consists  of  two  houses.  The 
senate  is  composed  of  two  members  from  each  state,  cho- 
sen by  its  own  legislature,  whatever  be  its  size  or  popula- 
tion, and  is  universally  admitted  to  be  strictly  federative  in 
its  structure.     The  house  of  representatives  consists  of 


CONSTITUTIONAL    LAW.  179 

members  chosen  in  each  state,  and  is  regulated  in  its  num- 
bers, according  to  a  prescribed  ratio  of  representation. 
The  number  to  which  each  state  is  entitled  is  proportioned 
to  its  own  population,  and  not  to  the  population  of  the  Uni- 
ted States ;  and  if  there  happen  to  be  a  surplus  in  any  state 
less  than  the  established  ratio,  that  surplus  is  not  added  to 
the  surplus  or  population  of  any  other  state,  in  order  to 
make  up  the  requisite  number  for  a  representative,  but  is 
wholly  unrepresented.  In  the  choice  of  representatives, 
each  state  votes  by  itself,  and  for  its  own  representatives, 
and  not  in  connexion  with  any  other  state,  nor  for  the  re- 
presentatives of  any  other  state.  Each  state  prescribes 
the  qualifications  of  its  own  voters,  the  constitution  only 
providing  that  they  shall  have  the  qualifications  which  such 
state  may  have  prescribed  for  the  voters  for  the  most  nume- 
rous branch  of  its  own  legislature.  And,  as  the  right  to 
vote  is  prescribed  by  the  state,  the  duti/  of  doing  so  cannot 
be  enforced,  except  by  the  authority  of  the  state.  No  one 
can  be  elected  to  represent  any  state,  except  a  citizen  there- 
of Vacancies  in  the  representation  of  any  state,  are  to  be 
supplied  under  writs  of  election,  issued  by  the  executive  of 
such  state.  In  all  this,  there  is  not  one  feature  of  nation- 
ality. The  whole  arrangement  has  reference  to  the  states 
as  such,  and  is  carried  into  effect  solely  by  their  authority. 
The  federal  government  has  no  agency  in  the  choice  of  re- 
presentatives, except  only  that  it  may  prescribe  the  '  times, 
places  and  manner,  of  holding  elections."  It  can  neither 
prescribe  the  qualifications  of  the  electors,  nor  impose  any 
penalty  upon  them,  for  refusing  to  elect.  The  states  alone 
can  do  these  things;  and,  of  course,  the  very  existence  of 
the  house  of  representatives  depends,  as  much  as  does  that 
of  the  senate,  upon  the  action  of  the  states.  A  state  may 
withdraw  its  representation  altogether,  and  congress  has  no 
power  to  prevent  it,  nor  to  supply  the  vacancy  thus  created. 
If  the  house  of  representatives  were  national,  in  any  prac- 
tical sense  of  the  term,  the  'nation'  would  have  authority 
to  provide  for  the  appointment  of  its  members,  to  prescribe 
the  qualifications  of  voters,  and  to  enforce  the  performance 
of  that  duty.  All  these  things  the  state  legislatures  can  do, 
within  their  respective  states,  and  it  is  obvious  that  they 
are  strictly  national.  In  order  to  make  the  house  of  re- 
presentatives equally  so,  the  people  of  the  United  States 


180  LECTURES    ON 

must  be  so  consolidated  that  the  federal  government  may 
distribute  them,  without  regard  to  state  boundaries,  into 
numbers  according  to  the  prescribed  ratio;  so  that  all  the 
people  may  be  represented,  and  no  unrepresented  surplus 
be  left  in  any  state.  If  these  things  could  be  done  under 
the  federal  constitution,  there  would  then  be  a  strict  ana- 
logy between  the  popular  branches  of  the  federal  and  state 
legislatures,  and  the  former  might,  with  propriety,  be  con- 
sidered '  national.'  But  it  is  difficult  to  imagine  a  national 
legislature  which  does  not  exist  under  the  authority  of  the 
nation,  and  over  the  very  appointment  of  which  the  nation, 
as  such,  can  exert  no  effective  control. 

"  There  are  only  two  reasons  which  I  have  ever  heard 
assigned  for  the  opinion  that  the  house  of  representatives  is 
national,  and  not  federative.  The  first  is,  that  its  measures 
are  carried  by  the  votes  of  a  majority  of  the  lohole  number, 
and  not  by  those  of  a  majority  of  the  states.  It  would  be 
easy  to  demonstrate  that  this  fact  does  not  warrant  such  a 
conclusion  ;  but  all  reasoning  is  unnecessary,  since  the  con- 
clusion is  disproved  by  the  example  of  the  other  branch  of 
the  federal  legislature.  The  senate,  which  is  strictly  fede- 
rative, votes  in  the  same  way.  The  argument,  therefore, 
proves  nothing,  because  it  proves  too  much. 

"  The  second  argument  is,  that  the  states  are  not  equally 
represented,  but  each  one  has  a  representation  proportion- 
ed to  its  population.  There  is  no  reason,  apparent  to  me, 
why  a  league  may  not  be  formed  among  independent  sove- 
reignties, giving  to  each  an  influence  in  the  management 
of  their  common  concerns,  proportioned  to  its  strength, 
its  wealth,  or  the  interest  which  it  has  at  stake.  This  is 
but  simple  justice,  and  the  rule  ought  to  prevail  in  all  cases, 
except  where  higher  considerations  disallow  it.  History 
abounds  with  examples  of  such  confederations,  one  of  which 
I  will  cite.  The  states  general  of  the  United  Provinces 
were  strictly  a  federal  body.  The  council  of  state  had  al- 
most exclusively  the  management  and  control  of  ail  their 
military  and  financial  concerns;  and  in  that  body,  Holland 
and  some  other  provinces  had  three  votes  each,  whilst  some 
had  two,  and  others  only  one  vote  each.  Yet  it  never  was 
supposed  that  for  this  reason  the  United  Provinces  were  a 
consolidated  nation.  A  single  example  of  this  sort  affords 
a  full  illustration  of  the  subject,  and  renders  all  farther  ar- 
gument superfluous. 


CONSTITUTIONAL    LAW.  181 

"  It  is  not,  however,  from  the  apportionment  of  its 
powers,  nor  from  the  modes  in-  wliich  those  powers  are  ex- 
ercised, that  we  can  determine  the  true  character  of  a  le- 
gislative body,  in  the  particular  now  under  consideration. 
The  true  rule  of  decision  is  found  in  the  manner  in  which 
the  body  is  constituted,  and  that  we  have  already  seen,  is, 
in  the  case  before  us,  federative,  and  not  national. 

"  We  may  safely  admit,  however,  that  the  house  of  re- 
presentatives is  not  federative,  and  yet  contend,  with  per- 
fect security,  that  the  legislative  department  is  so.  Con- 
gress consists  of  the  house  of  representatives  and  senate. 
Neither  is  a  complete  legislature,  in  itself,  and  neither  can 
pass  any  law  without  the  concurrence  of  the  other.  And, 
as  the  senate  is  the  peculiar  representative  of  the  states,  no 
act  of  legislation  whatever  can  be  performed,  without  the 
consent  of  the  states.  They  hold,  therefore,  a  complete 
check  and  control  over  the  powers  of  the  people  in  this  re- 
spect, even  admitting  that  those  powers  are  truly  and 
strictly  represented  in  the  other  branch.  It  is  true  that  the 
check  is  mutual ;  but  if  the  legislative  department  were 
national,  there  would  be  no  federative  feature  in  it.  It 
cannot  be  replied,  with  equal  propriety,  that,  if  it  were  fe- 
derative, there  would  be  no  national  feature  in  it.  The 
question  is,  whether  or  not  the  states  have  preserved  their 
distinct  sovereign  characters,  in  this  feature  of  the  consti- 
tution. If  they  have  done  so,  in  any  part  of  it,  the  whole 
must  be  considered  federative;  because  national  legislation 
implies  a  unity,  which  is  absolutely  inconsistent  with  all 
idea  of  a  confederation  ;  whereas,  there  is  nothing  to  pre- 
vent the  members  of  a  confederation  from  exerting  their 
several  powers,  in  any  form  of  joint  action  which  may 
seem  to  them  proper. 

"  But  there  is  one  other  provision  of  the  constitution 
which  appears  to  me  to  be  altogether  decisive  upon  this 
point.  Each  state,  whatever  be  its  population,  is  entitled 
to  at  least  one  representative.  It  may  so  happen  that  the 
unrepresented  surplus,  in  some  one  state,  may  be  greater 
than  the  whole  population  of  some  other  state;  and  yet 
such  latter  state  would  be  entitled  to  a  representative.  Upon 
what  principle  is  this?  Surely,  if  the  house  of  representa- 
tives were  national,  something  like  equality  would  be 
found  in  the  constitution  of  it.  Large  surpluses  would  not 
16 


182  LECTURES    ON 

be  arbitrarily  rejected  in  some  places,  and  smaller  num- 
bers, not  equal  to  the  general  ratio,  be  represented  in 
others.  There  can  be  but  one  reason  for  this :  As  the 
constitution  was  made  by  the  states,  the  true  principles  of 
the  confederation  could  not  be  preserved,  without  giving  to 
each  party  to  the  compact  a  place  and  influence  in  each 
branch  of  the  common  legislature.  This  was  due  to  their 
perfect  equality  as  sovereign  states. 

"  The  Executive. — In  the  election  of  the  president  and 
vice  president,  the  exclusive  agency  of  the  states,  as  such, 
is  preserved  with  equal  distinctness.  These  officers  are 
chosen  by  electors,  who  are  themselves  chosen  by  the  peo- 
ple of  each  state,  acting  by  and  for  itself,  and  in  such  mode 
as  itself  may  prescribe.  The  number  of  electors  to  which 
each  state  is  entitled  is  equal  to  the  whole  number  of  its 
representatives  a?id  senatoi-s.  This  provision  is  even  more 
federative  than  that  which  apportions  representation  in  the 
house  of  representatives ;  because  it  adds  two  to  the  elec- 
tors of  each  state,  and,  so  far,  places  them  upon  an  equa- 
lity, whatever  be  their  comparative  population.  The  peo- 
ple of  each  state  vote  ivithin  the  state,  and  not  elsewhere ; 
and  for  their  own  electors,  and  for  no  others.  Each  state 
prescribes  the  qualifications  of  its  own  electors,  and  can 
alone  compel  them  to  vote.  The  electors,  when  chosen, 
give  their  votes  within  their  respective  states,  and  at  such 
times  and  places  as  the  states  may  respectively  prescribe. 

"  There  is  not  the  least  trace  of  national  agency,  in  any 
part  of  this  proceeding.  The  federal  government  can  ex- 
ercise no  rightful  power  in  the  choice  of  its  own  executive. 
'  The  people  of  the  United  States'  are  equally  unseen  in 
that  important  measure.  Neither  a  majority,  nor  the  whole 
of  them  together,  can  choose  a  president,  except  in  their 
character  of  citizens  of  the  several  states.  Nay,  a  presi- 
dent may  be  constitutionally  elected,  with  a  decided  majo- 
rity of  the  people  against  him.  For  example.  New  York 
has  forty-two  votes,  Pennsylvania  thirty,  Virginia  twenty- 
three,  Ohio  twenty-one.  North  Carolina  fifteen,  Kentucky 
fourteen,  and  South  Carolina  fifteen.  These  seven  states 
can  give  a  majority  of  all  the  votes,  and  each  may  elect  its 
own  electors  by  a  majority  of  only  one  vote.  If  we  add 
their  minorities  to  the  votes  of  the  other  states,  (supposing 
those  states  to  be  unanimous  against  the  candidate,)  we 


CONSTITUTIONAL    LAW. 


183 


may  have  a  president  constitutionally  elected,  with  less 
than  half — perhaps  with  little  more  than  a  fourth — of  the 
people  in  his  favour.  It  is  true  that  he  may  also  be  con- 
stitutionally elected,  with  a  majority  of  the  states,  as  such, 
against  him,  as  the  above  example  shews;  because  the 
states  may,  as  before  remarked,  properly  agree,  by  the  pro- 
visions of  their  compact,  that  they  shall  possess  influence, 
in  this  respect,  proportioned  to  their  population.  But  there 
is  no  mode,  consistent  with  the  true  principles  of  free,  re- 
presentative government,  by  which  a  minority  of  those  to 
whom,  €71  masse,  the  elective  franchise  is  confided,  can 
countervail  the  concurrent  and  opposing  action  of  the  ma- 
jority. If  the  president  could  be  chosen  by  the  people  of 
'  the  United  States'  in  the  aggregate,  instead  of  by  the 
states,  it  is  difficult  to  imagine  a  case  in  which  a  majority 
of  those  people,  concurring  in  the  same  vote,  could  be 
overbalanced  by  a  minority. 

"  All   doubt  upon   this  point   however,   is  removed   by 
another  provision   of  the  constitution   touching  this  sub- 
ject.    If  no  candidate  should  receive  a  majority  of  votes 
in  the  electoral  colleges,  the  house  of  representatives  elects 
the  president,  from  the  three  candidates  who  have  received 
the  largest  electoral  vote.     In  doing  this  two  thirds  of  the 
states  must  be  present  by  their  representatives,  or  one  of 
them,  and  then  they  vote  hy  states,  all  the  members  from 
each  state  giving  one  vote,  and  a  majority  of  all  the  states 
being  necessary  to  a  choice.     This  is  precisely  the  rule 
which  prevailed  in  the  ordinary  legislation  of  that  body, 
under  the  articles  of  confederation,  and  which  proved  its 
federative  character,  as  strongly  as  any  other  provision  of 
those  articles.     Why,  then,  should  this  federative  princi- 
ple be  preserved,  in  the  election  of  the  president  by  the 
house  of  representatives,  if  it  was  designed  to  abandon  it, 
in  the  election  of  the  same  officer  by  the  electoral  colleges? 
No  good  reason  for  it  has  yet  been  assigned,  so  far  as  I  am 
informed.     On  the  contrary,  there  is  every  just  reason  to 
suppose,  that  those  who  considered  the  principle  safe  and 
necessary  in  one  form  of  election,  would  adhere  to  it  as 
equally  safe  and  necessary  in  every  other,  with  respect  to 
the  same  public  trust.     And  this  is  still  farther  proved  by 
the  provision  of  the  constitution  relating  to  the  election  of 
the  vice  president.     In  case  of  the  death  or  constitutional 


184  LECTURES    ON 

disability  of  the  president,  every  executive  trust  devolves 
on  him  ;  and,  of  course,  the  same  general  principle  should 
be  applied,  in  the  election  of  both  of  them.  This  is  done 
in  express  terms,  so  far  as  the  action  of  the  electoral  col- 
leges is  contemplated.  But  if  those  colleges  should  fail  to 
elect  a  vice  president,  that  trust  devolves  on  the  senate, 
who  are  to  choose  from  the  two  highest  candidates.  Here 
the  federative  principle  is  distinctly  seen  ;  for  the  senate  is 
the  representative  of  the  states. 

"  This  view  of  the  subject  is  still  farther  confirnr>ed  by 
the  clause  of  the  constitution  relating  to  impeachments. 
The  power  to  try  the  president  is  vested  in  the  senate 
alone,  that  is,  in  the  representatives  of  the  states.  There 
is  a  strict  fitness  and  propriety  in  this  ;  for  those  only, 
whose  officer  the  president  is,  should  be  entrusted  with  the 
power  to  remove  him. 

"  It  is  believed  to  be  neither  a  forced  nor  an  unreason- 
able conclusion  from  all  this,  that  the  executive  depart- 
ment is,  in  its  structure,  strictly  federative. 

"  The  Judiciary. — The  judges  are  nominated  by  the  pre- 
sident, and  approved  by  the  senate.  Thus  the  nominations 
are  made  by  a  feder<ative  officer,  and  the  approval  and  con- 
firmation of  them  depend  on  those  who  are  the  exclusive 
representatives  of  the  states.  This  agency  is  manifestly 
federative,  and  '  the  people  of  the  United  States'  cannot 
mingle  in  it,  in  any  form  whatever. 

"As  the  constitution  is  federative  in  the  structure  of  all 
three  of  its  great  departments,  it  is  equally  so  in  the  pmoer 
of  amendment. 

"  Congress  may  prapose,  amendments,  '  whenever  two 
thirds  of  both  houses  shall  deem  it  necessary.'  This  se- 
cures the  states  against  any  action  upon  the  subject,  by  the 
people  at  large.  In  like  manner,  congress  may  call  a  con- 
vention for  proposing  amendments,  '  on  the  application  of 
the  legislatures  of  two  thirds  of  the  several  states.'  It  is 
remarkable  that,  whether  congress  or  the  states  act  up- 
on the  subject,  tiie  same  proportion  is  required;  not  less 
than  two  thirds  of  either  being  authorized  to  act.  From 
this  it  is  not  unreasonable  to  conclude,  that  the  convention 
considered  that  the  same  power  would  act  in  both  cases  ; 
to  wit,  the  power  of  the  states,  who  might  effect  their  ob- 
ject either  by  tlieir  separate  action  as  states,  or  by  the  ac- 


CONSTITUTIONAL    LAW.  185 

tion  of  congress,  their  common  federative  agent;  but, 
whether  they  adopted  the  one  mode  or  the  other,  not  less 
than  two  thirds  of  them  should  be  authorized  to  act  effi- 
ciently. 

"  The  amendments  thus  proposed  '  shall  be  valid  to  all 
intents  and  purposes,  .as  part  of  this  constitution,  iclienra- 
tijied  by  the  legislatures  of  three  fourths  of  the  several 
states,  or  by  conventions  in  thiee  fourths  thereof,  as  the  one 
or  the  other  mode  of  ratification  may  be  proposed  by  con- 
gress.' It  is  the  act  of  adoption  or  ratification  alone  which 
makes  a  constitution.  In  the  case  before  us,  the  states 
alone  can  perform  that  act.  The  language  of  the  consti- 
tution admits  of  no  doubt,  and  gives  no  pretext  for  double 
construction.  It  is  not  the  people  of  the  United  States 
in  the  aggregate,  merely  acting  in  their  several  states,  who 
can  ratify  amendments.  Three  fourths  of  the  several  states 
can  alone  do  this.  The  idea  of  separate  and  independent 
political  corporations  could  not  be  more  distinctly  convey- 
ed, by  any  form  of  words.  If  the  people  of  the  United 
States,  as  one  people,  but  acting  in  their  several  states, 
could  ratify  amendments,  then  the  very  language  of  the 
constitution  requires  that  three  fourths  of  them  shall  con- 
cur therem.  Is  it  not,  then,  truly  wonderful,  that  no  mode 
has  yet  been  prescribed  to  ascertain  whether  three  fourths 
of  them  do  concur  or  not?  By  what  power  can  the  neces- 
sary arrangement  upon  this  point  be  effected?  In  point  of 
fact,  amendments  have  already  been  made,  in  strict  con- 
formity with  this  provision  of  the  constitution.  We  ask 
our  author,  whether  three  fourths  of  the  people  of  the 
'United  States  concurred  in  those  amendments  or  not;  and 
if  they  did,  whence  does  he  derive  the  proof  of  it  ? 

"  If  our  author,  and  the  politicians  of  his  school,  be  cor- 
rect in  the  idea,  that  the  constitution  was  formed  by  '  the 
people  of  the  United  States,'  and  not  by  the  states,  as  such, 
this  clause  relating  to  amendments  presents  a  singular  ano- 
maly in  politics.  Their  idea  is,  that  the  state  sovereignties 
were  merged,  to  a  certain  extent,  in  that  act,  and  that  the 
government  established  was  emphatically  the  government 
of  the  people  of  the  United  States.  And  yet,  those  same 
people  can  neither  alter  nor  amend  that  government !  In 
order  to  perform  this  essential  function,  it  is  necessary  to 
call  again  into  life  and  action  those  very  state  sovereign- 
16* 


186  LECTURES    ON 

ties  which  were  supposed  to  be  merged  and  dead,  by  tiie 
very  act  of  crcoting  the  instrument  which  they  are  re- 
quired to  amend !  To  alter  or  amend  a  government  re- 
quires the  same  extent  of  power  which  is  required  to  form 
one  ;  for  every  alteration  or  amendment  is,  as  to  so  much, 
a  new  government.  And,  of  all  political  acts,  the  forma- 
tion of  a  constitution  of  government  is  that  which  admits 
and  implies,  the  most  distinctly  and  to  the  fullest  extent, 
the  existence  of  absolute,  unqualified,  unconditional  and 
unlimited  sovereignty.  So  long,  therefore,  as  the  power  of 
amending  the  constitution  rests  exclusively  with  the  states, 
it  is  idle  to  contend  that  they  are  less  sovereign  now  than 
they  were  before  the  adoption  of  that  instrument. 

"  The  idea  which  I  am  endeavouring  to  enforce,  of  the 
federative  character  of  the  constitution,  is  still  farther  con- 
firmed by  that  clause  of  the  article  under  consideration, 
which  provides  that  no  amendment  shall  be  made  to  de- 
prive any  state  of  its  equal  suffrage  in  the  senate,  without 
its  own  consent.  So  strongly  were  the  states  attached  to 
that  perfect  equality  which  their  perfect  sovereignty  impli- 
ed, and  so  jealous  were  they  of  every  attack  upon  it,  that 
they  guarded  it,  by  an  express  provision  of  the  constitu- 
tion, against  the  possibility  of  overthrow.  All  other  rights 
they  confided  to  that  power  of  amendment  which  they  re- 
posed in  three  fourths  of  all  the  states;  but  this  they  re- 
fused to  entrust,  except  to  the  separate,  independent  and 
sovereign  will  of  each  state;  giving  to  each,  in  its  own 
case,  an  absolute  negative  upon  all  the  rest.(i) 

"The  object  of  the  ])receding  pages  has  been  to  shew 
that  the  constitution  is  federative,  in  the  power  which  fram- 
ed it ;  federative  in  the  power  which  adopted  and  ratified 
it;  federative  in  the  power  which  sustains  and  keeps  it 
alive ;  federative  in  tlie  power  by  which  alone  it  can  be 
altered  or  amended  ;  and  federative  in  the  structure  of 
all  its  departments.  In  what  respect,  then,  can  it  justly  be 

(j)  So  absolutely  is  the  federal  government  dependent  on  the 
states  for  its  existence  at  all  times,  that  it  may  l)c  absolutely  dis- 
solved, without  the  least  violence,  by  the  siinjjle  refusal  of  a  part 
of  the  states  to  act.  If,  for  example,  a  few  states,  having  a  majo- 
rity of  electoral  votes,  should  refuse  to  appoint  electors  of  presi- 
dent and  vice-president,  there  would  be  no  constitutional  execu- 
tive, and  the  whole  machinery  of  the  government  would  stop. 


CONSTITUTIONAL    LAW.  187 

called  a  consolidated  or  national  government  ?  Certainly 
the  mere  fact  that,  in  particular  cases,  it  is  authorized  to 
act  directly  on  the  people,  does  not  disprove  its  federative 
character,  since  that  very  sovereignty  in  the  states,  which 
a  confederation  implies,  includes  within  it  the  right  of  the 
state  to  subject  its  own  citizens  to  the  action  of  the  com- 
mon authority  of  the  confederated  states,  in  any  form  which 
may  seem  proper  to  itself  Neither  is  our  constitution  to 
be  deemed  the  less  federative,  because  it  was  the  object  of 
those  who  formed  it  to  establish  '  a  government,'  and  one 
effective  for  all  the  legitimate'  purposes  of  government. 
Much  emphasis  has  been  laid  upon  this  word,  and  it  has 
even  been  thought,  by  one  distinguished  statesman  of  judge 
Story's  school,  that  ours  is  '  a  government  proper.'  which 
I  presume  implies  that  it  is  a  government  in  a  peculiarly 
emphatic  sense.  I  confess  that  I  do  not  very  clearly  dis- 
cern the  difference  between  a  government  and  a  govern- 
ment proper.  Nothing  is  a  government  which  is  not  pro- 
perly so,  and  whatever  is  properly  a  government,  is  a  go- 
vernment proper.  But  whether  ours  is  a  '  government  pro- 
per,' or  only  a  simple  government,  does  not  prove  that  it  is 
not  a  confederation,  unless  it  be  true  that  a  confederation 
cannot  be  a  government.  For  myself,  I  am  unable  to  dis- 
cover why  states,  absolutely  sovereign,  may  not  create  for 
themselves,  by  compact,  a  common  government,  with 
powers  as  extensive  and  supreme  as  any  sovereign  people 
can  confer  on  a  government  established  by  themselves.  In 
what  other  particular  ours  is  a  consolidated  or  national 
government,  I  leave  it  to  the  advocates  of  that  doctrine  to 
shew." 


LECTURES    ON    CONSTITUTIONAL    LAW.  189 


LECTURE  VII. 

Having  thus  established,  I  trust,  beyond  all  reasonable 
doubt,  that  the  constitution  of  the  United  States  is  the 
creature  of  the  sovereign  states,  that  it  was  agreed  to  by 
them  in  that  character,  and  that  it  is  of  consequence  a 
compact  between  them,  whereby  they  have  ordained  and 
established  a  form  of  government  for  the  management  of 
their  affairs,  we  are  brought  next  to  the  natural  enquiry, 
"  What  are  the  consequences  of  those  principles,  and  in 
what  respect  do  the  two  great  parties  of  the  nation  differ 
in  relation  to  those  consequences  ?" 

That  portion  of  the  statesmen  and  politicians  in  our 
country  who  deny  that  the  constitution  was  established  by 
the  states  themselves,  in  their  sovereign  character,  and  in- 
sist that  it  was  ordained  and  "  established  by  the  people  of 
the  United  States  in  the  aggregate,  as  one  people, "(a) 
very  consistenly,  perhaps,  deny,  that  there  is  any  power  in 
the  states  to  call  in  question  the  constitutionality  of  laws 
made  by  the  general  government. (6)  Such  were  the  opi- 
nions of  Massachusetts  and  five  other  states  in  the  year 
1799,  and  such  seem  distinctly  to  be  the  views  of  the  com- 
mentator on  the  constitution.  On  the  other  hand,  it  is 
contended  by  those  who  look  upon  the  states  as  parties  to 
the  constitution,  that  that  character,  upon  ordinarily  re- 
ceived principles,  invests  them  with  a  right  to  judge  of  its 
infractions,  and  of  the  nature,  extent  and  obligations  of 
the  instrument.(c)     These  views  are  very  fully  presented, 

(tf)  Webster's  speech,  cited  and  approved  1  Story  33'2. 

(b)  Resolutions  of  Delaware,  Rhode  Island,  Massachusetts,  New 
York,  New  Hampshire  and  Vermont. 

(c)  The  difference  must  always  be  borne  in  mind  between  the 
mere  declaration  or  manifesto  of  a  state  denouncing  an  infraction 
of  the  constitution,  and  callinsj  the  attention  of  its  own  people, 
and  of  the  other  members  of  the  confederacy  to  its  violation,  and 
the  act  of  resistance  or  nullification  of  a  law  regularly  passed  by 
the  constituted  authorities.  The  former  is  without  objection,  as  it 
is  the  exercise  of  the  ordinary  right  of  canvassing  and  arraigning 
the  acts  of  the  servants  of  the  people.     The  latter  is  without  jus- 


190  LECTURES    ON 

not  only  in  the  extracts  made  by  judge  Story  from  the 
work  of  judge  Tucker,  but  also  in  the  able  report  of  Mr. 
Madison  in  1799,  which  forms  a  part  of  the  manual  of  the 
student. 

It  is  certainly  not  altogether  clear,  even  upon  the  prin- 
ciples of  those  who  look  upon  the  constitution  as  the  act 
of  the  people,  in  their  collective  capacity  as  one  people, 
that  the  states  constituting  organized  bodies,  to  whom  all 
rights  not  granted  are  reserved,  except  what  may  be  re- 
served to  the  people,  have  no  right  to  look  into  the  acts  of 
the  general  government,  to  canvass  them  freely,  and  to  en- 
quire whether  they  have  passed  those  limits,  which  the 
people,  the  common  masters  of  both  governments,  have 
laid  down  between  them.  Considering  the  legislatures  as 
representing  the  residuary  sovereignty  of  the  states,  one 
might  imagine  that  as  servants  and  trusted  agents  of  the 
people,  it  was  their  duty  to  sound  the  alarm  when  their 
rights  were  transcended.  If  the  right  of  the  people  peace- 
ably to  assemble  in  irregular  assemblies,  and  to  petition 
the  government  for  redress  of  grievances,  was  worthy  of 
being  secured,  it  would  seem  a  fortiori  that  their  legisla- 
tures representing  their  will  and  their  sovereignty  should 
be  untrammelled  in  the  free  expression  of  their  opinions 
as  to  the  constitutionality  of  the  measures  pursued  by  the 
general  government.  To  what  extent  they  may  go  will  be 
presently  considered.  But  there  seems  to  be  no  good  rea- 
son to  deny,  as  was  done  by  the  eastern  states  already  re- 
ferred to,  that  the  legislatures  "  have  the  right,"  or  "  are 
competent,"  or  "  are  proper  tribunals  to  decide  on  the  con- 
stitutionality of,"  or  "to  supervise  the  acts  of  the  general 
government."  Nor  did  some  of  the  states  in  question  he- 
sitate for  a  moment,  at  a  subsequent  period,  to  exercise  the 
right,  which  at  a  former  period  they  had  questioned.  For 
the  embargo  and  the  declaration  of  war,  certainly  called 
forth  from  some  of  them,  not  only  a  free  examination  of  the 
measures  themselves,  but  the  most  angry  denunciations  also 
of  the  course  of  the  general  government.    The  true  point  of 

tification,  and  partakos  of  a  revoluUonary  character  :  for  there  is 
no  constitutional  provision  for  such  a  proceeding,  and  whatever  is 
out  of,  or  subversive  of,  the  subsisting  and  established  order  of 
things,  is  revolutionary  in  its  tendencies  and  effects. 


CONSTITUTIONAL    LAAV.  191 

difference,  therefore,  probably  is,  not  as  to  the  existence  of 
the  right  to  interfere,  but  as  to  the  extent  of  interference 
only.  On  this  point,  it  is  believed,  that  the  opinions  of 
those,  belonging  to  what  is  familiarly  called  the  states  rights 
party,  were  at  one  time  seriously  divided ;  though  there 
may  be  reason  to  hope  that  the  advocates  of  some  of  the 
extravagant  positions  attributed  by  judge  Story  to  all  the 
party,  are  no  longer  urgent  in  pressing  these  questionable 
pretensions.  The  learned  commentator  thus  states  "the 
deductions,  which,  he  says,  may  be,  and  indeed  have  been 
drawn,  from  considering  the  constitution  as  a  compact  be- 
tween the  states." — "  They  are,  that  it  operates  as  a  mere 
treaty  or  convention  between  them,  and  Ifas  an  obligatory 
force  upon  each  no  longer  than  it  suits  its  pleasure,  or  its 
consent  continues;  that  each  state  has  a  right  to  judge  for 
itself  in  relation  to  the  nature,  extent  and  obligations  of 
the  instrument,  without  being  at  all  bound  by  the  interpre- 
tation of  the  federal  government,  or  by  that  of  any  other 
state :  and  that  each  retains  the  power  to  withdra?c  from 
the  confederacy/  and  to  dissolve  the  connexion  ivhcn  such 
shall  be  its  choice;  and  mai/  suspend  the  operations  of 
the  federal  government  and  nullify  its  acts  within  its 
own  territorial  limits,  lohenever,  in  its  oicn  opinion,  the 
erigency  of  the  case  maij  require."  The  part  in  italics 
embraces  the  much  talked  of  doctrines  of  secession  and 
nullification,  which  must  not  be  passed  without  remark. 

The  doctrine  of  nullification,  which  is  thus  presented  as 
flowing  naturally  from  the  position,  that  the  constitution  is 
a  compact  between  the  states,  is  not  fairly  to  be  attributed 
to  the  report  and  resolutions  of  the  state  of  Virginia. 
They  only  declare  "that  in  case  of  a  deliberate,  palpable 
and  dangerous  exercise  of  powers  not  granted  by  the  com- 
pact, the  states,  who  are  parties  thereto,  have  the  right, 
and  are  in  duty  bound,  to  interpose  for  arresting  the  pro- 
gress of  the  evil,  and  for  maintaining  within  their  respec- 
tive limits,  the  authorities,  rights  and  liberties  appertaining 
to  them."(rf) 

When  the  resolutions  of  1798,  of  which  this  was  a  part, 
were  introduced  by  John  Taylor  of  Caroline,  it  was  de- 

(d)  Taylor's  resolutions  of  1798.  Tiie  report  of  1799  reviews 
and  sustains  them. 


192  LECTURES    ON 

clared  by  one  of  them,  that  the  alien  and  sedition  laws 
were  "  unconstitutional  and  not  law,  but  utterly  null, 
void,  and  of  no  force  or  effect :"  but  tliese  words  were 
stricken  out  upon  motion,  without  opposition  ;  the  general 
assembly  thus  not  only  disavowing  every  attempt  to  nul- 
lify, but  even  disclaiming  the  declaration  that  the  law  was 
a  nullity.  This  was  indeed  going  farther  than  was  neces- 
sary, since  their  resolution  had  not  the  effect  of  a  law,  and 
could  not  even  in  their  own  courts,  have  had  any  influ- 
ence or  force ;  and  they  certainly  had  the  right  as  men,  as 
citizens,  and  as  a  legislative  body,  to  express  their  mere 
opinion  of  the  unconstitutionality  and  consequent  invali- 
dity of  the  obnoxious  laws. 

Virginia,  then,  has  never  by  her  public  acts  avowed  the 
docti-ine  of  niilliji cation ;  which  is  understood  to  mean  "  the 
right  of  a  state  to  continue  to  be  a  member  of  the  Union, 
to  receive  its  benefits,  to  exercise  its  authority,  to  unite 
in  its  legislation  by  its  senators  and  representatives,  and 
in  the  election  of  the  president  by  the  votes  of  its  people, 
and  at  the  same  time  to  pass  laws  arresting  the  execution 
of  laws  of  congress,  and  nullifying  those  laws  throughout 
its  limits  by  its  own  legislation  or  authority."  Such  a  pre- 
tension has,  I  think,  been  very  justly  deemed,  by  a  large 
portion  of  our  statesmen  and  politicians,  inconsistent,  mis- 
chievous and  inadmissible;  leading  inevitably  to  inequa- 
lity, disorder  and  civil  war,  or  to  a  severance  of  the  Union, 
with  its  innumerable  attendant  evils.  That  it  is  inconsis- 
tent is  apparent  in  this;  that  the  opposing  state  may  stand 
alone  in  its  opinions,  and  while  it  resists  the  unanimous 
sentiment  of  all  the  rest,  claims  and  receives  the  benefits 
of  the  Union.  It  may  thus  be  said  to  claim  to  be  in  and 
out  of  the  Union  at  the  same  time.  It  is  moreover  mis- 
chievous and  unequal  because  it  arrogates  to  a  single  state 
the  right  to  throw  from  its  shoulders,  a  burden  which  it 
thinks,  or  affects  to  think,  unconstitutional,  while  it  falls 
on  twenty-five  other  acquiescing  states ;  and  thus  renders 
unequal  those  contributions  for  the  common  defence  and 
general  welfare,  which  justice  and  the  constitution  require 
to  be  uniform.  Thus,  if  a  direct  tax  of  ten  millions  were 
laid,  and  one  state,  whose  quota  was  half  a  million,  should 
nullify  the  law,  while  others  complied  with  it  as  just  and 
lawful,  the  effect  would  be,  that  it  would  enjoy  all  the  be- 


CONSTITUTIONAL    LAW.  193 

nefits  of  the  government  without  the  payment  of  a  cent, 
and  the  taxes  must  be  increased  on  others  to  supply  its  de- 
ficit.    Could  other  states  be  expected  patiently  to  submit 
to  such  an  inequality?     Is  it  not  obvious  that  collision  be- 
tween the  general  government  and  the  state  would  be  un- 
avoidable, and  that  the  only  result  must  be  compulsion,  or 
expulsion  from  the  Union  1     How  long  could   a  state  ex- 
pect her  senators  or  representatives  to  be  admitted  to  seats 
upon  the  floor  of  congress,  while  her  legislature  at  home 
was  engaged  in  hostile  acts  in  contempt  of  the  unanimous 
opinion  of  her  sister  states  ?    Or  how  could  she  expect  her 
five  and  twenty  confederates  to  surrender  their  concurrent 
views  to  the  harsh  negative  of  her  discordant  voice  ?     Or 
how  could  she  look  to  an  exemption  from  the  exertion  of 
that  power  which  is  vested  in  the  general  government,  to 
"  call  forth  the  militia  to  execute  the  laws  of  the  Union," 
backed  by  regular  forces,  raised  under  the  express  provi- 
sions of  the  constitution  1     Or  if  the  strong  sentiment  of 
brotherly  love,  which  the  bond  of  fifty  years  standing  has 
rendered,  I  trust,  all-powerful,   should   prompt   to   milder 
measures,  what  less  could  be  said  to  the  discontented  and 
rebellious  member,  than   as  Abram   said  unto  Lot,   "Do 
thou  take  to  the  right   hand,  and  I  will  take  to  the  left,  so 
that  there  may  be  no  dispute  between  thine  and  mine.     If 
you  will  not  yield  to  the  unanimous  judgment  of  twenty- 
five  against  one,  all  of  whom   have  equal  right  to  decide 
with  yourself,  secede;  withdraw  from  the  Union,  for  which 
you  are  not  fit,  since  you   are  unwilling  to  submit  to  the 
decision  of  a  majority,  however  overwhelming."     Thus  it 
is  clear,  that  the  least  evil  resulting  from  nulUJication  is 
disunion ;  while  the  history  of  the  world  but  too  forcibly 
demonstrates  how  much  more  probable  may  be  the  remedy 
of  the  sword. 

But  let  us  examine  this  question  a  little  more  closely. 
The  pretensions  of  nullification  are  very  distinctly  stated 
by  Mr.  Madison,  in  his  letter  to  Everett  of  x4ugust  1830, 
in  which  he  says;  "this  brings  us  to  the  expedient  lately 
advanced,  which  claims  for  a  single  state  a  right  of  appeal, 
(against  an  exercise  of  power  by  the  government  of  the 
United  States,  decided  by  the  state  to  be  unconstitutional,) 
to  the  parties  to  the  constitutional  compact;  the  decision 
of  the  state  to  have  the  effect  of  nullifying  the  act  of  the 
17 


194  LECTURES    ON 

government  of  the  United  States,  unless  the  decision  of 
the  state  be  reversed  by  three  fourths  of  the  parties.  [States.] 
If  the  doctrine  were  to  be  understood  as  requiring  the 
three  fourths  to  sustain,  instead  of  that  proportion  to  re- 
verse, the  decision  of  the  appealing  state,  the  decision  to  be 
without  effect  during  the  appeal,  it  would  be  sufficient  to 
remark,  that  this  extra-constitutional  course  might  well  give 
way  to  that  marked  out  by  the  constitution,  which  autho- 
rizes two  thirds  of  the  states  to  institute,  and  three  fourths 
to  effectuate,  an  amendment  to  the  constitution,  establishing 
a  permanent  rule  of  the  highest  authority,  in  place  of  an 
irregular  precedent  of  construction  only.  But  it  is  un- 
derstood, that  tlie  nullifying  doctrine  imports,  that  the  de- 
cision of  the  state  is  to  be  presumed  to  be  valid,  and  that 
it  overrules  the  law  of  the  United  States,  unless  it  be  itself 
overruled  by  three  fourths  of  the  states,"  and  suspends  the 
law  until  the  state  decision  be  so  overruled. 

Now  the  first  question  which  here  presents  itself  is  in 
relation  to  this  appeal  of  a  single  state  to  the  parties  to  the 
constitution.  Has  the  state  legislature  a  right  to  make  this 
appeal,  or  are  their  powers  confined  to  the  authorizing  a 
convention  who  may  make  it?  Again,  can  the  legislatures 
of  other  states  respond  to  this  appeal,  or  must  not  they  act 
also  through  the  agency  of  conventions,  who  alone  repre- 
sent the  people  of  the  respective  states  on  these  momen- 
tous occasions.  It  would  seem  clear  from  what  has  already 
been  said  in  the  course  of  these  lectures,  that  though  the 
constitution  is  a  compact  between  the  people  of  the  re- 
spective states,  as  sovereign  and  independent,  it  was  a 
compact  entered  into  between  them,  not  through  the  me- 
dium of  the  ordinary  legislatures,  whose  powers  embraced 
no  authority  to  ordain  and  establish  a  federative  govern- 
ment, but  through  the  medium  of  conventions  in  the  seve- 
ral states,  representing  their  respective  sovereignties  in  the 
great  act  of  accepting,  ratifying  and  establishing  the  con- 
stitution. The  state  legislatures  were  constituted  by  the 
state  constitutions  to  exercise  certain  functions  entrusted 
to  them,  but  there  is  nothing  in  any  of  these  instruments 
to  authorize  the  legislatures  to  enter  into  a  contract  for  the 
states  for  the  establishment  of  another  government,  and 
giving  to  it  sovereign  powers,  which  they  were  no  where 
authorized  to  give.     Conventions,  therefore,  were  properly 


CONSTITUTIONAL    LAW.  195 

resorted  to,  and  the  people  of  the  states  became  parties 
through  conventions.  The  states  then  can  only  properly 
make  or  answer  appeals  through  conventions.  Accord- 
ingly a  convention  was  in  the  sequel  of  her  proceedings, 
called  together  by  South  Carolina,  in  Iter  appeal  to  her 
sister  states,  when  she  was  strenuously  maintaining  her 
doctrines  of  nullification. (e)  With  this  preliminary  re- 
mark let  us  now  see  what  would  be  the  consequences  of 
this  doctrine. 

In  the  first  place,  no  effectual  appeal  can  be  made,  ex- 
cept through  the  call  of  a  convention,  by  the  dissatisfied 
state,  and  thus  the  heavy  burdens  of  an  extra  deliberate 
body  must  be  incurred  whenever  the  discontented  are  suf- 
ficiently numerous  at  home  to  succeed  in  such  a  measure. 

Secondly;  if  this  call  is  to  be  responded  to,  it  can  only 
be  answered  by  the  deliberation  and  decision  of  five  and 
twenty  other  state  conventions  called  together  for  that  pur- 
pose :  And  as  there  are  already  six  and  twenty  states, 
there  must  thus  be,  upon  every  factious  or  fretful  appeal  made 
by  any  one  of  the  whole  number,  the  heavy  burden  of  six 
and  twenty  conventions  throughout  the  Union,  which,  in 
addition  to  their  expenses,  would  keep  the  public  mind  in 
a  state  of  perpetual  ferment  and  excitement.  Yet  upon 
the  principles  contended  for,  the  uncomplaining  states  must 
acquiesce  in  appointing  conventions,  since  "  the  law  is  to 
be  suspended  until  the  decision  of  the  appealing  state"  has 
been  reversed  by  three  fourths  of  the  parties ! 

Thirdly ;  it  must  be  observed  that  as  there  is  no  provi- 
sion in  the  constitution  for  anv  such  proceeding,  and  as  in 
each  case  there  must  be,  to  the  people,  a  direct  appeal,  the 
whole  must  be  above  the  constitution,  not  under  it.  It 
must  be  then,  of  course,  subversive  of  the  subsisting  order 
of  things :  And  what  is  this  but  revolution  upon  every 
petty  cavil  as  to  the  character  of  a  law  enacted  by  the  re- 
presentatives, both  of  the  people  and  the  states,  sustained 
by  the  signature  of  the  president,  and  stamped  with  vali- 
dity by  the  seal  of  the  judiciary  ? 

(c)  Where  powers  are  reserved  to  the  states,  and  they  are  invaded 
by  congress,  the  state,  of  course,  will  proceed  to  exercise  its  pow- 
ers in  the  ordinary  mode,  and  in  the  event  of  collision,  the  judi- 
ciary (the  umpire  appointed  to  decide  all  cases  arising  under  the 
constitution)  must  decide. 


196  LECTURES    ON 

Fourthly ;  let  us  proceed  a  step  farther.  The  appeal 
and  responses,  it"  proceeding  from  conventions,  or  even 
from  legislative  bodies,  must  be  tardy  and  protracted,  and 
the  consequences  of  a  suspension  of  vital  laws,  until  the 
decision  is  promulgated  as  to  their  supposed  validity,  must 
be  dangerous  and  sometimes  fatal.  If  an  embargo  is  laid(y*) 
on  the  eve  of  war,  which  Massachusetts  thinks  uncon- 
stitutional, the  law  must  be  suspended  at  her  instance,  and 
our  ports  thrown  open,  until  three  fourths  of  the  states 
shall  overrule  her  objections.  If  the  requisitions  of  mili- 
tia service,  flagrante  bello,  are  deemed  unconstitution- 
al,(^)  if  a  border  state  refuses  to  permit  its  militia  to  cross 
the  Canada  line  to  consunmiate  a  victory  already  half  won, 
they  must  be  halted  till  three  fourths  of  the  states  shall 
silence  their  scruples.  If  direct  ta.\es  are  laid(/j)  to  carry 
on  a  war  for  liberty  and  existence,  the  collection  must  be 
suspended  till  all  the  states  are  heard  from.  If  a  fort  is  to 
be  erected,  we  may  be  compelled  by  one  state  to  wait  till 
all  the  rest  shall  respond  to  some  technical  and  quibbling 
objection,  and  if  the  surrender  of  our  runaway  slaves,  or 
of  the  negro  stealers,  who  carry  them  off  is  evaded,  against 
the  plain  words  of  the  constitution,  we  must  wait  for  re- 
dress until  three  fourths  of  the  states  shall  decide  that  the 
act  of  our  northern  brethren  is  not  justified  by  the  com- 
pact. And  when  may  that  be  expected?  Ad  Graicas 
Calendas  !  Never!  Never,  at  least,  if  the  spirit  of  abo- 
lition and  fanaticism  are  not  checked  in  their  rapid  and 
alarming  growth.  Until  then  we  must  wait  for  a  declara- 
tion, by  the  states,  that  the  recent  laws  of  Pennsylvania 
and  New  York,  on  the  subject  of  the  trial  of  the  master's 
rights  before  a  jury,  are  unconstitutional  and  void  !  For- 
tunately for  the  south,  a  shorter  and  a  surer  remedy  was  af- 
forded by  the  decision  of  the  supreme  court  of  the  United 
States  in  the  case  of  Prigg  v.  State  of  Pemisylvania,  in 
which  the  laws  for  the  protection  of  fugitive  slaves,  and 
giving  to  them  a  jury  trial  when  demanded  by  their  mas- 
ters, was  declared  unconstitutional  and  void.  But  what  is 
to  be  the  effect,  (even  upon  this  decision,)  of  the  resistance 
of   Pennsylvania,    if   the    principles    of   nullification    are 

(/)  Case  of  embargo  during  late  war. 
(o-)  Case  during  last  war. 
(h)  E.  g.  the  carriage  tax. 


CONSTITUTIONAL    LAW.  197 

brought  to  bear  upon  it  ?  It  will  be  annulled  and  held  for 
nought,  until  it  be  sustained  by  tlvee  fourths  of  the  states. 

Nor  can  it  escape  observation  that  by  the  adoption  of 
such  a  principle,  those  salutary  and  sacred  provisions  in 
the  constitution,  which  were  the  result  of  compromise,  may 
be  put  in  jeopardy.  The  northern  interest,  it  is  well  known, 
were  greatly  opposed  to  the  principle,  which,  in  the  esti- 
mate of  our  slaves  on  the  question  of  representation,  treat- 
ed them  in  some  degree  as  persons,  whereby  we  gained 
many  representatives  in  the  south  ;  whereas  in  the  assess- 
ment of  taxes,  they  were  not  all  looked  upon  as  property, 
and  we  were  thus  saved  no  small  portion  of  the  burden  of 
taxation.  We  have  representatives  for  three  fifths  of  the 
slaves,  and  in  the  estimate  of  taxes,  two  fifths  are  exclu- 
ded.(i)  If  this  important  provision  had  not  been  secured 
at  the  formation  of  the  constitution  of  the  United  States, 
what  prospect  would  there  be  of  obtaining  it  now?  And 
plain  as  it  is,  if  on  any  pretext  it  could  be  resisted,  resis- 
tance would  amount  to  repeal,  since  the  northern  states 
never  would  assent  to  it  as  an  independent  provision  in 
behalf  of  the  southern  states. 

There  is,  indeed,  no  point  of  view  in  which  this  gratui- 
tous notion  of  nullification — this  notion,  which  finds  no 
place  in  the  constitution,  and  was  never  among  the  dreams 
of  the  most  visionary  in  our  conventions, — this  notion, 
which  is  the  mere  figment  of  the  brain  of  politicians  teem- 
ing with  new  conceptions  generated  by  the  heat  of  party 
feuds,  there  is  no  point  of  view  in  which  it  can  be  consi- 
dered, in  which  its  mischievous  and  incongruous  operation 
is  not  most  wofully  coiispicuous.  Let  us  imagine  to  our- 
selves half  a  dozen  dissatisfied  states,  each  having  its  own 
peculiar  grievance,  appealing,  with  all  the  exacerbation  of 
party  feeling,  against  particular  laws  of  the  general  govern- 
ment. Let  us  then  fairly  estimate  the  influence  of  such  a 
combination  of  circumstances  upon  the  peace,  the  happi- 
ness and  fraternity  of  the  Union.     Let  us,  moreover,  call 

(i)  Considering  them  as  property,  they  ought  to  have  given  us 
no  additional  representatives;  considering  them  as  persons,  they 
ought  to  have  been  estimated  in  the  population  in  laying  direct 
taxes.  Yet  three  fifths  are  estimated  in  the  representation,  and  two 
fifths  are  excluded  in  the  apportionment  of  taxes.  They  are  per- 
sons when  it  avails  us,  and  property  when  it  does  not. 
IT* 


19S 


LECTURES    ON 


to  mind  the  time  that  must  be  required  to  carry  out  the  dis- 
cussions, and  to  come  to  a  conclusion  in  six  and  twenty 
states,  spread  over  this  extensive  continent.  Let  us  then, 
moreover,  duly  estimate  the  changing  opinions  of  men,  and 
still  more  of  political  bodies,  in  the  short  space  of  one  re- 
volving year.  A  legislature  in  1842,  remonstrates  and  ap- 
l)eals  against  a  law.  Before  a  response  to  its  appeal,  a  new 
election  changes  the  political  phase  of  the  body,  and  what 
was  before  abhorred  as  unconstitutional,  is  now  approved 
by  acclamation.  Such  things  have  well  nigh  been.  In 
1S08,  a  Virginia  house  of  delegates  proposed  an  amend- 
ment to  the  constitution  of  the  United  States,  providing  for 
the  removal  of  the  judges  upon  the  vote  of  the  two  houses 
of  congress.  Had  the  measure  passed,  Virginia  in  two  years 
afterwards  would  have  strained  every  nerve  for  its  repeal. 
Before  her  sister  states  would  all  have  passed  upon  it,  she 
would  have  been  the  earnest  opponent  of  her  own  proposi- 
tion. These  considerations  furnish  the  most  abundant  rea- 
sons against  too  hasty  and  ill  considered  amendments,  and 
they  are  yet  more  weighty,  when  applied  to  maiming  and 
crippling  the  constitution,  by  the  innumerable  wounds,  and 
ingenious  devices  of  modern  nullification. 

Nor  is  the  notion  of  a  power  in  the  state  governments 
to  nullify  the  laws  of  the  Union,  more  mischievous  than 
the  application  of  the  same  principle  to  the  decisions  of 
the  judiciary.  We  are  told  by  the  very  able  and  ingeni- 
ous author  of  the  review  of  judge  Story's  conmientaries(A) 
that  "  if  in  a  controversy  between  the  United  States  and  a 
citizen, (/)  the  decision  is  against  the  citizen  in  the  su- 
preme court  of  the  United  States,  there  is  no  relief  for  him 
in  any  other  judicial  proceeding."  In  this  we  must  all 
concur.  But  he  goes  on  to  observe,  that  "  his  only  relief 
is  by  an  appeal  to  his  oicn  state."  a  position  as  novel  and 
alarming  as  it  is  believed  to  be  in  utter  subversion  of  the 

(k)  Pa.  87. 

(l)  I  do  not  understand  judg-o  Upsliur's  reasoning  as  being  con- 
fined to  a  case  between  the  United  States  and  a  citizen.  It  goes 
the  full  length  of  shewing  that  where  the  citizen  is  in  any  case 
aggrieved  by  the  enforcement  of  a  law  ^^  which  the  state  did  not 
consent  that  conrrrcss  should  pass,"  he  may  appeal  to  the  state  for 
its  decision  on  the  question.  I  shall  therefore  treat  the  matter 
without  reference  to  the  party  liij  whom  the  aggrieved  citizen  is 
sued. 


CONSTITUTIONAL    LAW.  199 

very  first  principles  of  legitimate  government.    Let  us  pre- 
sent, however,  the  whole  passage  in  justice  to  the  author. 

"  He"  (the  citizen)  he  continues,  "  is  under  no  obliga- 
tion to  submit  to  federal  decisions  at  all,  except  so  far  only 
as  his  own  state  has  commanded  him  to  do  so ;  and  he  has, 
therefore,  a  perfect  right  to  ask  his  state  whether  her  com- 
mands extend  to  the  particular  case  or  not.  He  does  not 
ask  whether  the  federal  court  has  interpreted  the  law  cor- 
rectly or  not,  but  whether  or  not  she  ever  consented  that 
congress  should  pass  the  lain.  If  congress  had  such  power, 
he  has  no  relief,  for  the  decision  of  the  highest  federal 
court  is  final ;  if  congress  had  not  such  power,  then  he  is 
oppressed  by  the  action  of  a  usurped  authority,  and  has  a 
right  to  look  to  his  own  state  for  redress.  His  state  may 
interpose  in  his  favour  or  not,  as  she  may  think  proper.  If 
she  does  not,  then  there  is  an  end  of  the  matter ;  if  she 
does,  then  it  is  no  longer  a  judicial  question.  The  ques- 
tion is  then  between  new  parties,  who  are  not  bound  by  the 
former  decision ;  between  a  sovereign  state  and  its  own 
agent ;  between  a  state  and  the  United  States.  As  between 
these  parties  the  federal  tribunals  have  no  jurisdiction, 
there  is  no  longer  a  common  umpire  to  whom  the  contro- 
versy can  be  referred.  The  state  must  of  necessity  judge  for 
itself,  by  virtue  of  that  inherent,  sovereign  power  and  au- 
thority, which,  as  to  this  matter,  it  has  never  surrendered  to 
any  other  tribunal.  Its  decision,  whatever  it  may  be,  is  bind- 
ing upon  itself  and  upon  its  own  people,  and  no  farther." 

Again,  in  page  90,  our  author  observes,  "that  ordina- 
rily, the  judiciary  are  the  proper  interpreters  of  the  pow- 
ers of  government,  hut  they  interpret  in  subordination  to 
the  power  which  created  them."  How  are  we  to  understand 
this  remark?  Is  it  that  the  judiciary  of  the  United  States 
jrust  conform  their  decisions  to  the  rescripts  of  the  state, 
and  bow  with  submission  to  the  constitutional  interpreta- 
tion of  a  political  body,  pronouncing  upon  its  own  rights, 
swayed  by  its  peculiar  interests,  and  animated  by  its  politi- 
cal prejudices  and  views  of  state  policy.  Had  the  learned 
judge,  once  himself  a  luminary  of  the  bench,  forgotten  the 
object  and  the  character  of  the  judiciary,  and  what  is  mainly 
looked  for  in  the  character  of  a  judge.  Had  he  forgotten 
the  terms  of  that  oath,  in  which  the  state,  addressing  the 
judicial   functionary,  gives  him  this  solemn   injunction : 


200 


LECTURES    ON 


"  You  shall  faithfully  and  impartially  discharge  your  duty 
as  a  judge,  by  doing  equal  justice  to  all  men,  high  and 
low,  rich  and  poor,  without  fear,  favour,  affection  or  par- 
tiality. You  shall  deny  justice  to  none,  by  reason  of  any 
letter  of  request  or  solicitation  from  any,  but  you  shall,  in 
all  things,  do  right,  according  to  law,  according  to  the  best 
of  your  skill,  ability  and  judgment,  so  help  you  God." 
These  are  the  commands  of  the  sovereign  people  to  this 
important  servant.  These  are  its  only  commands.  Be- 
yond these,  the  judge  is  the  servant  of  no  man ;  he  is  the 
slave  of  no  man's  will.  His  only  guide  is  his  conscience; 
his  only  light,  the  law  and  the  intelligence  it  has  pleased 
God  to  give  him.  The  object  of  his  creation  is  perfect  in- 
dependence. He  is  the  only  officer  who  holds  his  place  for 
life  in  this  government  of  responsibility.  He  is  the  only 
officer  who  holds  a  salary  by  a  certain  tenure.  It  cannot  be 
diminished  during  his  continuance  in  office.  He  is  the  only 
officer,  therefore,  who  is  altogether  independent,  even  of  his 
masters,  so  long  as  he  behaves  himself  honestly  and  faith- 
fully. They  have  made  him  so — they  intended  to  make  him 
so,  and  justly,  too,  for  he  who  is  to  ascend  the  seat  of  justice 
and  pronounce  between  the  state  and  her  subjects,  ought  to 
be  placed  in  circumstances  to  defy  her  frowns.  It  is  thus, 
only,  that  he  can  be  the  barrier  between  innocence  and  its 
persecutor.  It  is  thus,  only,  that  he  can  be  elevated  to  the 
high  character  of  being  deaf  as  an  adder  and  insensible 
as  a  stoic  to  the  threats  of  a  tyrant  or  the  terrors  of  the 
crowd. 

Jtistum  et  tenaruvi  ^-c. 

The  construction  of  the  judicial  branch  of  the  govern- 
ment, both  in  England  and  America,  is  indeed  one  of  the 
greatest  discoveries  of  modern  times.  The  judge  is  de- 
signed to  be,  as  far  as  may  be,  an  impossible  being,  an  in- 
tellectual es.sence,  elevated  above  the  storms  and  conten- 
tions of  political  parties;  unswayed  by  feeling,  unmoved 
by  passion,  disenthralled  from  prejudice,  uninfluenced  by 
power,  either  of  government  or  people;  a  being  without 
fear  and  without  reproach ;  dauntless  and  intrepid  in  the 
discharge  of  his  duties,  calm  and  elevated  in  their  perfor- 
mance;  the  follower  of  no  man's  opinions,  but  pursuing 
the  unbiassed  dictates  of  his  own  honest  and  upright  judg- 


CONSTITUTIONAL    LAW.  201 

ment,  with  the  devotion  of  a  worshipper  at  the  throne  of 
eternal  justice.  He  feels  his  independence,  and  is  con- 
scious that  it  was  given  to  make  him  an  impartial  umpire 
in  the  controversies  of  stales,  not  less  than  in  the  petty 
squabbles  of  village  warfare.  Such  a  man  would  spurn  the 
idea  of  holding  his  opinions  in  subordination  to  any  one — 
even  to  a  state. 

I  cannot,  therefore,  think  that  more  is  here  meant  by 
the  writer  than  the  restoration  of  the  notion,  presented  in 
a  former  page,  of  the  right  of  the  citizen  to  appeal  to  his 
state,  to  appeal  from  this  permanent  tribunal,  placed  as  far 
as  possible,  above  all  the  pernicious  influences  of  preju- 
dice, interest  and  passion,  to  one  which  is  but  the  child  of 
a  day,  which  owes  its  very  creation  wholly  to  the  ferment 
of  party,  which  is  appointed  but  to  serve  its  ends,  and  is 
the  slave  of  its  will,  which  lives  but  in  its  warmth,  and 
whose  brief  existence  expires  when  it  has  fulfilled  the  be- 
hests which  called  it  into  being.  Heaven  protect  my  rights 
from  such  a  judiciary  !  Such  an  one  will  the  legislature 
or  convention  of  Pennsylvania  be,  when  it  is  called  upon 
to  decide  in  the  case  of  Prigg  v.  The  State.  Yet  its  de- 
cision is  to  supersede  the  judgment  of  the  supreme  court, 
until  that  judgment  shall  be  affirmed  by  three  fourths  of 
the  states;  an  event  which  'tis  obvious  the  spirit  of  aboli- 
tion never  will  permit. 

The  whole  error  of  the  able  and  learned  author,  indeed, 
may  be  traced,  I  conceive,  to  the  unfounded  notion,  that 
the  constitution  has  appointed  no  common  umpire  to  settle 
questions  of  constitutional  power  between  the  states  and 
the  United  States,  (page  87.)  Such  an  umpire  is  appoint- 
ed in  the  establishment  of  the  supreme  court,  with  powers 
extending  to  "  all  cases  arising  under  the  constitution." 
Every  judiciary  is  an  umpire !  Every  judiciary  is  invest- 
ed with  power  to  pronounce  upon  the  rights  of  the  parties, 
not  under  the  influence  of  party  passions  or  political  feel- 
ings, or  even  with  a  view  to  national  interest,  but  according 
to  the  laws  of  the  land  and  the  immutable  and  eternal  prin- 
ciples of  justice.  In  relation  to  every  question  submitted 
to  them  by  this  constitution,  and  by  the  sovereignties  who 
are  parties  to  it,  they  are  as  clearly  umpires  as  the  king  of 
Holland  was  in  the  recent  controversy  respecting  the 
northern  boundary.     The  umpire  between  sovereigns  is 


202  LECTURES    ON 

not  necessarily  a  sovereign  ;  for  the  monarch  may  be  a 
dolt,  who  finds  it  necessary  to  call  in  his  ministers  to  his 
aid,  who  are  then  the  real  umpires.  The  umpire  of  states, 
by  their  own  consent,  may  be  the  wise  and  good  among 
their  own  people.  Such  are  the  commissioners  very  fre- 
quently appointed  by  states  to  adjust  disputed  points,  and 
settle  details,  to  which  the  sovereigns  may  of  themselves 
be  incompetent.  And  such  are  a  wise  and  pure  and  inde- 
pendent judiciary,  selected  for  their  sagacity,  distinguish- 
ed for  their  purity,  and  marked  out  by  their  matchless  firm- 
ness and  integrity.  Such  are  the  proper,  the  best  umpires 
between  confederated  states  !     Such  are  ours  ! 

What,  then,  is  their  duty,  and  how  far  does  their  power 
extend  ?  Their  duty  is  to  decide  according  to  the  right ! 
According  to  the  right  as  dictated  by  a  sound  and  unbias- 
sed judgment !  Their  power  extends  to  the  settlement  of 
the  controversy.  Good  faith  demands  obedience,  even  from 
those  who  created  them,  to  the  award  of  their  referees.  Is  this 
a  novel  doctrine  in  our  land?  Is  it  the  introduction  of  a 
principle  hitherto  unknown  to  our  laws?  Far  from  it !  In 
some,  perhaps  in  many  of  the  states,  the  right  of  a  citizen 
to  sue  the  state  before  her  own  tribunals  is  admitted.  In 
all,  suits  are  prosecuted  by  the  states  against  individuals, 
and  in  all,  the  state,  as  well  as  the  individual,  bows  sub- 
missive to  the  award  of  the  judges  acting  under  their  war- 
rant. So  under  the  constitution.  The  states  have  appoint- 
ed these  elevated  dignitaries,  and  raised  them  as  far  as  pos- 
sible, above  fear  and  above  temptation,  for  the  purpose  of 
ministering  in  the  great  temple  of  justice.  They  are  bound 
then  by  their  decisions;  they  have  no  power  to  gainsay 
their  award ;  there  is  no  appeal  from  their  authoritative 
judgments.  This  is  confessedly  so,  where  the  states  are 
parties  on  the  record.  The  judicial  power  by  the  express 
compact  of  the  confederate  sovereigns,  extends  to  all  con- 
troversies between  two  or  more  states.  Whatever  the  de- 
cision of  the  court,  whether  upon  a  constitutional  question, 
or  upon  any  other  point,  the  losing  party  must  acquiesce, 
for  she  cannot  appeal  to  herself  in  her  own  case.  She  has 
then  no  appeal.  No  constitutional  appeal  being  provided, 
the  faith  of  the  sovereign  is  plighted  to  obey.  And  if  the 
state  itself  is  absolutely  bound,  how  happens  it,  that  her 
people,  whose  cases  are  equally  submitted  to  this  tribunal, 


CONSTITUTIONAL    LAW.  203 

can  have  a  right  of  appeal  1  Such  a  pretension  is  pregnant 
with  difficulties  which,  I  cannot  think,  have  presented 
themselves  to  the  mind  of  the  learned  reviewer. 

In  the  first  place,  let  us  enquire  to  what  tribunal  is  this 
appeal  to  be  taken.  We  are  told,  indeed,  he  is  to  appeal 
to  his  state.  But  to  what  department  of  the  state  govern- 
ment is  he  to  carry  his  complaints?  Is  it  to  be  to  a  poli- 
tical, or  to  a  judicial  body?  If  it  be  a  political  body  pro- 
nouncing upon  the  question  as  one  of  the  parties  to  the 
compact,  then,  as  we  have  elsewhere  seen,  the  legislative 
body  which  did  not  represent  the  sovereignty  in  the  forma- 
tion of  the  constitution,  is  not  the  proper  authority,  but  a 
convention  must  be  called  to  decide  the  great  political  ques- 
tion brought  up  by  appeal  for  its  decision.  And  thus,  when- 
ever the  party  to  any  controversy  in  a  federal  court,  can 
raise  a  question  as  to  the  exercise  of  jurisdiction,  or  the 
validity  of  a  law  of  congress,  and  brings  it  before  the  le- 
gislature, they  must  call  a  convention  to  settle  it.  Verily 
this  "  medicine  of  the  constitution  would  soon  become  our 
daily  bread  !" 

Another  and  another  difficulty  presents  itself  How  is 
it  that  the  question  which  is  judicial  in  its  character,  is  to 
be  brought  and  decided  before  so  ephemeral  a  tribunal  as 
a  convention  of  the  state?  How  is  it  that  what  has  been 
decided  by  the  calm  and  sublimated  tribunal  erected  by 
the  states,  is  now  to  be  re-examined  before  a  political  body 
under  all  the  excitement  so  natural  to  their  creation,  with- 
out a  hearing  of  the  adversary  party,  without  provision  for 
superseding  the  judgment  and  enforcing  its  own  decision, 
and  without  the  means  of  getting  the  opinions  of  other 
states  upon  the  political  question  in  which  all  are  equally 
interested  ?  It  is  clear  enough  that  this  bungling  contri- 
vance is  not  under  the  constitution.  If  the  constitution 
had  contemplated  an  appeal  from  the  supreme  court  to  the 
state  authorities,  whether  judicial,  legislative,  or  conven- 
tional, it  would  have  made  the  necessary  provisions  for 
conducting  it.  It  would  have  prescribed  the  tribunal ;  it 
would  have  provided  for  the  parties  being  heard  ;  it  would 
have  prescribed  the  effect  of  the  appellate  decision,  and  the 
manner  of  enforcing  it,  and  it  would  have  contrived  some 
mode  of  reconciling  the  contlicting  opinions  of  contending 
states.     For  if,  as  would  commonly  happen,  the  plaintiff 


204  LECTURES    ON 

should  be  of  one  state,  and  the  defendant  of  another,  and 
the  losing  party  should  appeal  to  his  state  and  reverse  the 
decision,  the  other  party  would  then  be  aggrieved,  and 
would  in  turn  appeal  to  his  state  for  redress.  Thus  "  with 
two  authorities  up — neither  supreme,"  the  direst  mischiefs 
would  result,  unless  adequate  remedies  had  been  provided 
by  the  constitution.  This  was  not  done,  because  nothing 
like  it  was  in  contemplation.  The  measure  then,  of  ap- 
peal, is  not  under  the  constitution,  but  beside  it,  or  above  it. 
It  is  a  resort  to  original  rights  and  the  law  of  self-preser- 
vation. It  is  therefore  revolutionary,  as  every  such  resort 
must  be.  I  do  not  question  the  right  of  revolution  when 
either  the  government  through  all  the  branches,  or  the 
members  of  the  confederacy  itself,  shall  concur  in  gross 
and  intolerable  oppression  and  usurpation.  When  that  is 
the  case,  the  "  remedy  is  one  never  provided  by  human  in- 
stitutions. It  is  by  a  resort  to  the  ultimate  right  of  all  hu- 
man beings  in  extreme  cases  to  resist  oppression,  and  to  ap- 
ply ybrcc  against  ruinous  injustice. "(m)  Such  resort  how- 
ever is  upon  the  responsibility  of  the  party  asserting  it; — 
and  a  heavy  responsibility  that  is,  which  rests  upon  those 
who  break  up  the  foundations  of  society,  who  reduce  go- 
vernment to  its  elements,  and  expose  a  suffering  people  to 
all  the  horrors  of  that  elemental  war.  No !  the  right  of 
resistance  against  oppression  is  the  most  holy  of  rights ; 
but  nothing  is  more  mischievous  than  to  make  every  petty 
grievance  an  occasion  for  its  exercise! 

It  must  further  be  remarked,  that  the  great  object  for 
which  this  right  of  appeal  is  asserted,  is  to  protect  the  re- 
spective members  of  the  confederacy  from  the  operation  of 
unconstitutional  laws,  or  unconstitutional  adjudications. 
But  in  these  questions,  one  state  is  not  alone  interested. 
All  are  interested ;  and  one  may  be  as  willing  to  enforce, 
as  another  to  arrest  a  statute  or  decision.  If  one  has  a 
right  to  decide,  others  have  the  same  right ;  and  thus  we 
have  twenty-six  courts  of  appeal,  each  of  which  is  to  have 
the  final  right,  as  far  as  its  own  people  are  concerned,  to 
decide  on  the  constitutional  question. («)  Suppose  twenty- 
five  decide  in  favour  of  the  law  or  decision  of  the  supreme 

(m)  1  Story  374-5. 
(n)  Review  88. 


CONSTITUTIONAL    LAW.  205 

court.  Shall  they,  and  their  people,  be  subject  to  its  bur- 
dens and  requirements,  while  one  is  exempt  ?  Is  this  the 
equality  of  our  system  ?  Or  is  the  decision  of  one  to  be 
overruled  by  the  decision  of  twenty-five  ?  If  so,  provision 
ought  certainly  to  be  made  for  procuring,  collating  and 
comparing  the  various  adjudications.  Or  are  we  to  follow 
the  rule  before  spoken  of,  that  the  judgment  of  the  su- 
preme court  is  to  be  arrested  until  three  fourths  of  the 
states  confirm  it?  Taking  this  to  be  rule,  let  us  see  how 
it  would  work. 

A  citizen  of  Pennsylvania  sues  a  Virginian  in  the  fede- 
ral court  of  this  state  in  a  case  in  which  the  constitutional 
question  of  the  right  to  sue  is  involved.  Judgment  is  ren- 
dered against  the  Virginian.  He  appeals  to  his  state  for 
redress.  Virginia  decides  that  the  law  or  judgment  is  un- 
constitutional, and  that  there  was  no  right  to  sue.  The 
judgment  then  must  be  suspended  till  three  fourths  approve 
it.  With  this  state  of  things  the  Pennsylvanian  is  dissatis- 
fied. He  appeals  to  his  state,  which  decides  that  there  was 
a  right  to  sue.  He  then  demands  an  enforcement  of  the 
judgment  until  three  fourths  of  the  states  pronounce  it 
wrong.  Thus  Virginia  denies  that  there  is  any  right  to 
sue  unless  three  fourths  of  the  states  determine  otherwise. 
On  the  other  hand,  Pennsylvania,  with  equal  rights,  insists 
that  there  is  a  right  to  sue  until  three  fourths  of  the  states 
determine  otherwise. 

Both  cannot  be.  For  one  or  the  other  must  be  over- 
ruled by  one  more  than  one  fourth.  Which  shall  it  be? 
A  casuist  even  would  be  puzzled  to  decide. 

It  is  earnestly  contended,  indeed,  that  the  right  of  the 
states  to  determine,  for  themselves,  every  question  of  con- 
stitutional law,  and  to  decide  whether  the  compact  is  bro- 
ken, is  inseparable  from  its  sovereignty.  This  is,  indeed, 
most  true,  where  no  umpire  is  appointed  to  decide  the 
question.  But  where  parties  standing  in  antagonist  rela- 
tions appoint  an  umpire,  they  cannot  question  or  renounce 
his  decision.  Bona  fides  demands  their  compliance  with 
it.  Now,  as  will  be  presently  shewn,  the  judiciary  have 
been  appointed  by  the  states  to  decide  all  questions  arising 
under  the  constitution.  They  do  therefore  constitute  the 
umpire  between  the  states  and  the  United  States,  and  be- 
tween the  several  states  of  the  confederacy  and  their  citi- 
18 


206  LECTURES    ON 

zens,  and  both  parties  are  conclusively  bound  by  its  deci- 
sions. Nor  can  there  be  danger  in  such  an  umpirage.  Se- 
lected for  their  virtues  and  ability,  and  lifted  above  all  fear 
or  favour  or  affection,  they  merit  confidence  from  all ;  but 
as  they  are  citizens  of  the  states  and  attached  peculiarly 
to  them,  the  states  have  surely  little  reason  for  distrust : 
And  if  we  could  suspect  them  of  any  leaning  which  does 
not  spring  from  honest  conviction,  we  should  surely  appre- 
hend a  leaning  to  the  states. 

Let  us  see  then  in  whom  are  the  judicial  powers  of  the 
government  vested  by  the  constitution.  The  third  article, 
section  1st,  declares  that  they  "  shall  be  vested  in  one  su- 
preme court,  and  in  such  inferior  courts  as  congress  may 
from  time  to  time  ordain  and  establish."  And  in  the  2d 
section  it  provides,  that  the  judicial  power  shall  extend  to 
ALL  cases  arising  under  the  constitution,"  so  that  the  de- 
cision of  ALL  cases  arising  under  the  constitution,  is  vested 
in  the  supreme  court,  and  such  inferior  courts,  &.c.  But 
if  the  constitution  of  the  United  States  vests  the  power  to 
decide  a  question  arising  under  the  constitution  in  the  su- 
preme court,  there  can  be  no  constitutional  appeal  from  its 
decision  ;  for  if  there  could,  it  would  no  longer  be  supreme. 
For  the  power  to  decide  (which  is  the  judicial  power)  is  a 
power  to  determine  a  question  or  dispute  ;(o)  and  the  vest- 
ing that  power  in  one  supreme  court,  is  a  negative  of  the 
power  of  any  other  body  to  controvert  its  determination. 
For  if  the  judgment  of  the  supreme  court  may  be  contro- 
verted by  another  court,  then  it  is  clear  that  the  court  is 
not  supreme,  and  that  its  judgment  has  not  determined  [or 
put  an  end  to]  the  question,  although,  the  power  to  deter- 
mine it  is  given  by  the  constitution.  The  judgments  then 
of  the  supreme  court,  "  in  cases  arising  under  the  consti- 
tution," must  be  final  and  conclusive.  This,  indeed,  seems 
to  be  admitted  as  to  all  other  tribunals  ;(p)  and  I  think  1 
have  shewn  there  can  be  no  other  appeal,  except  that  which 
consists  in  a  rejection  of  the  "  cancelled  obligations  of  the 
violated  compact,  and  a  resort  to  original  rights,  and  the 
law  of  self-preservation." 

What  then  are  "cases  arising  under  the  constitution?" 
Are  questions  of  constitutional  law,  and  cpiestions  of  the 

(o)  Walker's  Dictionary, 
(p)  Review  p.  80,  para.  2. 


CONSTITUTIONAL    LAW.  207 

jurisdiction  of  the  supreme  court  such  cases?  If  so,  they 
are  comprehended  by  the  judicial  power  which  is  vested 
in  the  supreme  court,  and  its  decisions  thereupon  are  final 
and  conclusive. 

Now,  it  would  not  seem  to  admit  of  doubt  that  all  ques- 
tions of  constitutional  law,  whether  respecting  the  true 
meaning  and  intention  of  the  instrument,  or  the  extent  and 
character  of  the  several  powers  granted  to  the  federal  go- 
vernment, or  any  department  thereof,  are  questions  arising 
under  the  constitution  ;  and  all  cases  betvjecn  proper  parties, 
which  depend  upon  such  questions,  are,  therefore,  cases 
arising  under  the  constitution.  To  all  such  cases  it  is  de- 
clared that  the  jurisdiction  shall  extend.  When,  there- 
fore, the  court  is  in  possession  of  such  a  case,  the  deter- 
mination of  which  depends  upon  a  constitutional  question, 
it  must  of  necessity  determine  that  question,  if  it  deter- 
mines the  case;  and  that  determination,  we  have  endea- 
voured to  shew,  must  be  final  and  conclusive.  This  is 
emphatically  the  case  as  to  the  subject  of  jurisdiction, («/) 
and,  therefore,  the  judgment  of  the  supreme  court,  on  a 
question  of  jurisdiction,  however  erroneous  it  may  seem, 
is  final  and  conclusive,  and  cannot  be  controverted  by  any 
other  court  or  organ  of  the  government.  The  supreme 
court  itself,  indeed,  may,  in  a  subsequent  case,  reconsider 
the  question  and  overrule  the  precedent ;  but  until  they  do 
so,  it  must  be  held  to  be  final  and  conclusive,  and  can  in 
no  wise  be  lawfully  resisted.  The  states  may,  indeed, 
amend  the  constitution,  but  until  amended  there  seems  to 
be  no  mode  of  getting  rid  of  an  obnoxious  precedent,  but 
by  the  act  of  the  court  itself  in  overruling  it. 

(q)  "  It  is  admitted,"  says  the  reviewer  very  truly,  "that  every 
court  must  necessarily  determine  every  question  of  jurisdiction  be- 
fore it, and,  so  far,  it  must  of  course  be  the  judge  of  its  own  pow- 
ers. If  it  be  a  court  of  the  last  resort,  its  decision  is  necessarily 
final,  so  far  as  those  authorities  are  concerned  which  belong  to  the 
same  system  of  government  with  itself." 


LECTURES  ON  CONSTITUTIONAL  LAW.       209 


LECTURE  VIII. 

There  are  cases  however,  arising  under  the  constitution, 
which  never  can  be  brought  before  the  judiciary  for  its 
decision.  "  As  to  these  cases,"  says  the  reviewer,  "  each 
state  must,  of  necessity,  be  its  own  final  judge  or  interpre- 
ter." Very  true !  but  in  these  cases  of  controversy  be- 
tween the  states  and  the  United  States  as  to  the  extent  of 
the  powers  of  the  latter,  if  any  one  state  has  the  power  of 
judging  or  interpreting  for  itself,  all  the  other  five  and 
twenty  have  an  equal  power;  and  if  they  persist(a)  in 
maintaining  and  upholding  what  the  single  state  resists,  it 
must  either  by  reason  and  its  remonstrances  bring  about  a 
change  of  opinion,  or  it  must  finally  yield  its  objections 
and  submit  to  the  interpretation  of  the  constitution  by  its 
sister  states  until  it  can  procure  an  amendment  in  confor- 
mity with  its  own  views.  Until  then  the  obnoxious  mea- 
sure will  be  carried  out,  not,  indeed,  by  action  upon  the 
state  itself,  through  its  several  organs,  but  upon  the  indi- 
viduals composing  the  state,  according  to  the  true  theory 
and  principles  of  the  constitution. 

It  sometimes,  indeed,  may  happen  that  the  federal  go- 
vernment will  have  no  power  to  enforce  the  states  to  do 
their  duty.  Thus,  if  a  state  refuses  to  elect  senators,  or 
to  appoint  electors,  there  is  no  remedy,  and  thus,  it  is  true, 
by  combination  among  the  states,  the  government  may  be 
destroyed.  On  the  other  hand,  in  some  cases  of  collision 
between  the  states  and  general  government,  where  the  lat- 
ter can  act  on  individuals,  it  may  do  so  and  carry  out  its 
laws  in  spite  of  the  resistance  of  the  states.  It  proceeds 
to  execute  the  law,  and   if  resisted,   the  offender  is  sub- 

(a)  If  they  or  a  majority  of  congress  do  not,  then  tlie  obvious  re- 
medy is  a  repeal  of  the  obnoxious  law.  If  the  majority  of  con- 
gress approve  it,  and  the  judiciary  pronounce  it  valid,  no  state  can 
have  a  constitutional  ri^ht  to  resist  it.  Its  only  remedy  is  above 
the  constitution.  In  other  words  it  must  be  by  revolution,  or  se- 
cession, which  is  revolution  ;  and  as  all  the  states  have  equal  right 
to  judge,  secession  must  always  be  upon  the  responsibility  of  llie 
seceding  state. 

18* 


210  LECTURES    ON 

jected  to  the  laws  of  the  Union.  It  will  be  no  justification 
to  him  in  its  forum  that  he  acted  under  a  conflicting  state 
law.  So,  if  the  governor  of  a  state  were  to  issue  an  order 
to  the  militia  while  in  the  actual  service  of  the  United 
States  during  war,  the  executive  of  the  Union  could  not 
act,  indeed,  upon  the  governor,  but  a  court  martial  would 
act  upon  the  individual  who  should  foolishly  obey  his  or- 
ders. So  as  to  the  legislative  bodies.  Congress  cannot 
act  directly  on  the  legislatures,  however  gross  their  viola- 
tions of  the  constitution.  The  legislature  of  one  sovereign 
cannot  act  upon  the  legislature  of  another  unless  by  ex- 
press compact ;  and  hence  congress  cannot  compel  the  state 
legislatures  to  pass,  or  forbid  them  from  passing  any  law. 
If  they  pass  unconstitutional  laws,  which  can  come  under 
judicial  cognizance  in  the  federal  courts,  those  courts  ar- 
rest their  operation  by  action  on  individuals.  If  the  law 
can  in  no  wise  be  brought  within  the  judicial  sphere,  the 
federal  legislature  acts  without  regarding  it,  though  no  po- 
litical dreamer  has  ever  thought  of  compulsive  repeal,  or 
instructions  to  proceed  according  to  its  mandate. (6) 

With  these  views  of  my  own  on  the  interesting  topics 
of  nullification,  and  the  powers  of  the  supreme  court,  I 
shall  present  to  the  student  the  striking  observations  of  se- 
veral distinguished  statesmen  and  politicians.  It  cannot 
but  have  been  remarked,  that  in  these  constitutional  ques- 
tions, I  occupy  an  isthmus  that  divides  two  great  contend- 
ing parties  in  the  nation.  I  have  endeavoured  to  main- 
tain a  middle  course  between  dangerous  extremes.  On  the 
one  hand  is  nullification,  and  upon  the  other  centralization  ; 
the  rocks  of  Scylla  and  the  engulphing  whirlpool  of  Cha- 
rybdis.  In  shunning  both,  I  have  followed,  I  am  sure,  the 
track  of  the  wisest  and  most  virtuous  of  our  statesmen  ; 
and  I  feel  the  sincerest  gratification  in  being  able  to  sus- 
tain myself  on  both  points,  by  the  authority  of  one  who 
shared  in  the  adoption  of  the  constitution,  and  who  has  al- 
ways maintained  its  federative  character,  while  he  has  re- 
sisted with  the  force  of  truth  the  disorganizing  doctrines 
falsely  deduced  from  it.  I  shall  first,  however,  avail  my- 
self of  judge  Story's  able  disquisitions,  which  will  be  found 

(b)  The  late  apportionment  bill  is  charged  with  this  absurdity.  I 
have  not  yet  seen  it. 


CONSTITUTIONAL    LAW.  211 

to  repel  with  great  force  of  argument  the  unfounded  and 
mischievous  pretensions  of  the  advocates  of  nullification. 
At  the  conclusion  of  them  will  be  found  Mr.  Madison's 
views  as  presented  in  his  letter  to  Everett  in  August  1830  : 

"  §  373.  The  consideration  of  the  question,  whether  the 
constitution  has  made  provision  for  any  common  arbiter  to 
construe  its  powers  and  obligations,  would  properly  find  a 
place  in  the  analysis  of  the  different  clauses  of  that  instru- 
ment. But,  as  it  is  immediately  connected  with  the  sub- 
ject before  us,  it  seems  expedient  in  this  place  to  give  it 
a  deliberate  attention. (c) 

"  §  374.  In  order  to  clear  the  question  of  all  minor 
points,  which  might  embarrass  us  in  the  discussion,  it  is 
necessary  to  suggest  a  few  preliminary  remarks.    The  con- 

(c)  The  point  was  very  strongly  argued,  and  much  considered,  in 
the  case  of  Cohens  v.  Virginia,  in  the  supreme  court,  in  1821,  (6 
Wheat.  R.  264.)  The  whole  argument,  as  well  as  the  judgment, 
deserves  an  attentive  reading.  The  result,  to  which  the  argument 
against  the  existence  of  a  common  arbiter  leads,  is  presented  in  a 
very  forcible  manner  by  Mr.  chief  justice  Marshall,  in  pages  376, 
377: 

"  The  questions  presented  to  the  court  by  the  two  first  points 
made  at  the  bar  are  of  great  magnitude,  and  may  be  truly  said  vi- 
tally to  affect  the  Union.  They  exclude  the  enquiry,  whether  the 
constitution  and  laws  of  the  United  States  have  been  violated  by 
the  judgment,  which  the  plaintiffs  in  error  seek  to  review;  and 
maintain,  that,  admitting  such  violation,  it  is  not  in  the  power  of 
the  government  to  apply  a  corrective.  They  maintain,  that  the 
nation  does  not  possess  a  department  capable  of  restraining  peace- 
ably, and  by  authority  of  law,  any  attempts,  which  may  be  made 
by  a  part  against  the  legitimate  powers  of  the  whole  ;  and  that  the 
government  is  reduced  to  the  alternative  of  submitting  to  such  at- 
tempts, or  of  resisting  them  by  force.  They  maintain,  that  the 
constitution  of  the  United  States  has  provided  no  tribunal  for  the 
final  construction  of  itself,  or  of  the  laws  or  treaties  of  the  nation  ; 
but  that  this  power  may  be  exercised  in  the  last  resort  by  the  courts 
of  every  state  in  the  Union.  That  the  constitution,  laws  and  trea- 
ties, may  receive  as  many  constructions,  as  there  are  states ;  and 
that  this  is  not  a  mischief,  or,  if  a  mischief,  is  irremediable.  These 
abstract  propositions  are  to  be  determined;  for  he,  who  demands 
decision  without  permitting  enquiry,  affirms,  that  the  decision  he 
asks  does  not  depend  on  enquiry. 

"  If  such  be  the  constitution,  it  is  the  duty  of  this  court  to  bow 
with  respectful  submission  to  its  provisions.  If  such  be  not  the 
constitution,  it  is  equally  the  duty  of  this  court  to  say  so ;  and  to 
perform  that  task,  which  the  American  people  have  assigned  to 
the  judicial  department." 


212  LECTURES    ON 

stitution,  contemplating  the  grant  of  limited  powers,  and 
distributing  them  among  various  functionaries,  and  the 
state  governments,  and  their  functionaries,  being  also 
clothed  with  limited  powers,  subordinate  to  those  granted 
to  the  general  government,  whenever  any  question  arises 
as  to  the  exercise  of  any  power  by  any  of  these  functiona- 
ries under  the  state,  or  federal  government,  it  is  of  neces- 
sity, that  such  functionaries  must,  in  the  first  instance,  de- 
cide upon  the  constitutionality  of  the  exercise  of  such 
power. (f/)  It  may  arise  in  the  course  of  the  discharge  of 
the  functions  of  any  one,  or  of  all,  of  the  great  depart- 
ments of  government,  the  executive,  the  legislative,  and 
the  judicial.  The  officers  of  each  of  these  departments 
are  equally  bound  by  their  oaths  of  office  to  support  the 
constitution  of  the  United  States,  and  are  therefore  con- 
scientiously bound  to  abstain  from  all  acts,  which  are  in- 
consistent with  it.  Whenever,  therefore,  they  are  required 
to  act  in  a  case,  not  hitherto  settled  by  any  proper  autho- 
rity, these  functionaries  must,  in  the  first  instance  decide, 
each  for  himself,  whether,  consistently  with  the  constitu- 
tion, the  act  can  be  done.  If,  for  instance,  the  president 
is  required  to  do  any  act,  he  is  not  only  authorized,  but 
required,  to  decide  for  himself,  whether,  consistently  with 
his  constitutional  duties,  he  can  do  the  act.(c')  So,  if  a 
proposition  be  before  congress,  every  member  of  the  legis- 
lative body  is  bound  to  examine,  and  decide  for  himself, 
whether  the  bill  or  resolution  is  within  the  constitutional 
reach  of  the  legislative  powers  confided  to  congress.    And 

(d)  See  the  Federalist,  No.  33. 

(c)  Mr.  Jefferson  carries  his  doctrine  mucli  farther,  and  holds, 
that  each  department  of  government  has  an  exclusive  right,  inde- 
pendent of  the  judiciary,  to  decide  for  itself,  as  to  the  true  con- 
struction of  the  constitution.  "My  construction,"  says  he,  "is 
very  different  from  that,  you  quote.  It  is,  that  each  department 
of  the  government  is  truly  independent  of  the  others,  and  has  an 
equal  right  to  decide  for  itself,  what  is  the  meaning  of  the  consti- 
tution in  the  laws  submitted  to  its  action,  and  especially  when  it  is 
to  act  ultimately  and  without  appeal."  And  he  proceeds  to  give 
examples,  in  which  he  disregarded,  when  president,  the  decisions 
of  the  judiciary,  and  refers  to  the  alien  and  sedition  laws,  and  the 
case  of  Marhurij  v.  Madison,  (1  Cranch  137.)  4  Jefferson's  Cor- 
resp.  316,  317.  Bee  also  4  Jefferson's  Corresp.  27;  Id.  75;  Id.  372, 
374. 


CONSTITUTIONAL    LAW.  213 

in  many  cases,  the  decisions  of  the  executive  and  legisla- 
tive departments,  thus  made,  become  final  and  conclusive, 
being  from  their  very  nature  and  character  incapable  of 
revision.  Thus,  in  measures  exclusively  of  a  political,  le- 
gislative, or  executive  character,  it  is  plain,  that  as  the  su- 
preme authority,  as  to  these  questions,  belongs  to  the  le- 
gislative and  executive  departments,  they  cannot  be  re-ex- 
amined elsewhere.  Thus,  congress  having  the  power  to 
declare  war,  to  levy  taxes,  to  appropriate  money,  to  regu- 
late intercourse  and  commerce  with  foreign  nations,  their 
mode  of  executing  these  powers  can  never  become  the  sub- 
ject of  re-examination  in  any  other  tribunal.  So  the  power 
to  make  treaties  being  confided  to  the  president  and  senate, 
when  a  treaty  is  properly  ratified,  it  becomes  the  law  of  the 
land,  and  no  other  tribunal  can  gainsay  its  stipulations. 
Yet  cases  may  readily  be  imagined,  in  which  a  tax  may  be 
laid,  or  a  treaty  made,  upon  motives  and  grounds  wholly 
beside  the  intention  of  the  constitution. (f)  The  remedy, 
however,  in  such  cases,  is  solely  by  an  appeal  to  the  people 
at  the  elections ;  or  by  the  salutary  power  of  amendment, 
provided  by  the  constitution  itself  (§■) 

"  §  375.  But,  where  the  question  is  of  a  different  na- 
ture, and  capable  of  judicial  enquiry  and  decision,  there  it 
admits  of  a  very  diilerent  consideration.  The  decision 
then  made,  whether  in  favour,  or  against  the  constitution- 
ality of  the  act,  by  the  state,  or  by  the  national  authority, 
by  the  legislature,  or  by  the  executive,  being  capable,  in 
its  own  nature,  of  being  brought  to  the  test  of  the  consti- 
tution, is  subject  to  judicial  revision.  It  is  in  such  cases, 
as  we  conceive,  that  there  is  a  final  and  common  arbiter 
provided  by  the  constitution  itself,  to  whose  decisions  all 

(/)  See  4  Elliot's  Debates,  315  to  320. 

(g)  The  Federalist,  No.  44.— Mr.  Madison,  in  the  Virginia  Re- 
port of  January  1800,  has  gone  into  a  consideration  of  this  point, 
and  very  properly  suggested,  that  there  may  be  infractions  of  the 
constitution  not  within  the  reach  of  the  judicial  power,  or  capable 
of  remedial  redress  through  the  instrumentality  of  courts  of  law. 
But  we  cannot  agree  with  him,  that  in  such  cases,  each  state  may 
take  the  construction  of  the  constitution  into  its  own  hands,  and 
decide  for  itself  in  the  last  resort ;  much  less,  that  in  a  case  of  ju- 
dicial cognizance,  the  decision  is  not  binding  on  the  states.  See 
Report,  p.  6,  7,  8,9. 


214  LECTURES    ON 

Others  are  subordinate  ;  and  that  arbiter  is  the  supreme  ju- 
dicial authority  of  the  courts  of  the  Union. (A) 

"  §  376.  Let  us  examine  the  grounds  on  which  this  doc- 
trine is  maintained.  The  constitution  declares,  (art.  6,) 
that  'This  constitution,  and  the  laws  of  the  United  States, 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties, 
&LC.  shall  be  the  supreme  law  of  the  land.'  It  also  de- 
clares, (art.  3,)  that  '  The  judicial  power  shall  extend  to 
all  cases  in  law  and  equity,  arising  under  this  constitution, 
the  laws  of  the  United  States,  and  treaties  made,  and 
which  shall  be  made  under  their  authority.'  It  further  de- 
clares, (art.  3,)  that  the  judicial  power  of  the  United 
States  '  shall  be  vested  in  one  supreme  court,  and  in  such 
inferior  courts,  as  the  congress  may,  from  time  to  time,  or- 
dain and  establish.'  Here,  then,  we  have  express,  and  de- 
terminate provisions  upon  the  very  subject.  Nothing  is 
imperfect,  and  nothing  is  left  to  implication.  The  consti- 
tution is  the  supreme  law ;  the  judicial  power  extends  to 
all  cases  arising  in  law  and  equity  under  it ;  and  the  courts 
of  the  United  States  are,  and,  in  the  last  resort,  the  su- 
preme court  of  the  United  States  is,  to  be  vested  with  this 
judicial  power.  No  man  can  doubt  or  deny,  that  the  power 
to  construe  the  constitution  is  a  judicial  power. (z)  The 
power  to  construe  a  treaty  is  clearly  so,  when  the  case  ari- 
ses in  judgment  in  a  controversy  between  individuals.(A:) 

(A)  Dane's  App.  §  44,  45,  p.  52  to  59. — It  affords  me  very  sincere 
gratification  to  quote  tlie  following  passage  from  the  learned  com- 
mentaries of  Mr.  chancellor  Kent,  than  whom  very  few  judges  in 
our  country  are  more  profoundly  versed  in  constitutional  law. 
After  enumerating  the  judicial  powers  in  the  constitution,  he  pro- 
ceeds to  observe:  "The  propriety  and  fitness  of  these  judicial 
powers  seem  to  result,  as  a  necessary  consequence,  from  the  union 
of  these  states  in  one  national  government,  and  they  may  be  con- 
sidered as  requisite  to  its  existence.  The  judicial  power  in  every 
government  must  be  co-extensive  with  the  power  of  legislation. 
Were  there  no  power  to  interpret,  pronounce,  and  execute  the  law, 
the  government  would  either  perish  through  its  own  imbecility,  as 
was  the  case  with  the  old  confederation,  or  other  powers  must  be 
assumed  by  the  legislative  body  to  the  destruction  of  liberty."  1 
Kent's  Comm.  (2d  edi.  p.  296,)  Lect.  14,  277. 

(i)4  Dane's  Abridg.  ch.  187,  art.  20,  §  15,  p.  590;  Dane's  App. 
§  42,  p.  49,  50  ;    §  44,  p.  52, 53 ;  1  Wilson's  Lectures,  461,  462,  463. 

{k)  See  Address  of  Congress,  Feb.  1787 ;  Journals  of  Congress, 
p.  33 ;  Rawle  on  the  Constitution,  App.  2,  p.  316. 


CONSTITUTIONAL    LAW.  215 

The  like  principle  must  apply  where  the  meaning  of  the 
constitution  arises  in  a  judicial  controversy ;  for  it  is  an 
appropriate  function  of  the  judiciary  to  construe  laws.(?) 
If,  then,  a  case  under  the  constitution  does  arise,  if  it  is 
capable  of  judicial  examination  and  decision,  we  see,  that 
the  very  tribunal  is  appointed  to  make  the  decision.  The 
only  point  left  open  for  controversy  is,  whether  such  deci- 
sion, when  made,  is  conclusive  and  binding  upon  the  states, 
and  the  people  of  the  states.  The  reasons,  why  it  should 
be  so  deemed,  will  now  be  submitted. 

"§  377.  In  the  first  place,  the  judicial  power  of  the 
United  States  rightfully  extending  to  all  such  cases,  its 
judgment  becomes  ipso  facto  conclusive  between  the  par- 
ties before  it,  in  respect  to  the  points  decided,  unless  some 
mode  be  pointed  out  by  the  constitution,  in  which  that 
judgment  may  be  revised.  No  such  mode  is  pointed  out. 
Congress  is  vested  with  ample  authority  to  provide  for  the 
exercise  by  the  supreme  court  of  appellate  jurisdiction 
from  the  decisions  of  all  inferior  tribunals,  whether  state 
or  national,  in  cases  within  the  purview  of  the  judicial 
power  of  the  United  States ;  but  no  mode  is  provided  by 
which  any  superior  tribunal  can  re-examine,  what  the  su- 
preme court  has  itself  decided.  Ours  is  emphatically  a 
government  of  laws,  and  not  of  men ;  and  judicial  deci- 
sions of  the  highest  tribunal,  by  the  known  course  of  the 
common  law,  are  considered,  as  establishing  the  true  con- 
struction of  the  laws,  which  are  brought  into  controversy 
before  it.  The  case  is  not  alone  considered  as  decided 
and  settled ;  but  the  principles  of  the  decision  are  held,  as 
precedents  and  authority,  to  bind  future  cases  of  the  same 
nature.  This  is  the  constant  practice  under  our  whole  sys- 
tem of  jurisprudence.  Our  ancestors  brought  it  with  them., 
when  they  first  emigrated  to  this  country ;  and  it  is,  and 
always  has  been  considered,  as  the  great  security  of  our 
rights,  our  liberties,  and  our  property.  It  is  on  this  ac- 
count, that  our  law  is  justly  deemed  certain,  and  founded 
in  permanent  principles,  and  not  dependent  upon  the  ca- 
price, or  will  of  particular  judges.  A  more  alarming  doc- 
trine could  not  be  promulgated  by  any  American  court, 
than  that  it  was  at  liberty  to  disregard  all  former  rules  and 

(I)  Bacon's  Abridgment,  statute  H. 


216  LECTURES    ON 

decisions,  and  to  decide  for  itself,  without  reference  to  the 
settled  course  of  antecedent  principles. 

"  §  378.  This  known  course  of  proceeding,  this  settled 
habit  of  thinking,  this  conclusive  effect  of  judicial  adjudica- 
tions, was  in  the  full  view  of  the  framers  of  the  constitution. 
It  was  required,  and  enforced  in  every  state  in  the  Union ; 
and  a  departure  from  it  would  have  been  justly  deemed  an 
approach  to  tyranny  and  arbitrary  power,  to  the  exercise 
of  mere  discretion,  and  to  the  abandonment  of  all  the  just 
checks  upon  judicial  authority.  It  would  seem  impossible, 
then,  to  presume,  if  the  people  intended  to  introduce  a 
new  rule  in  respect  to  the  decisions  of  the  supreme  court, 
and  to  limit  the  nature  and  operations  of  their  judgments 
in  a  manner  wholly  unknown  to  the  common  law,  and  to 
our  existing  jurisprudence,  that  some  indication  of  that  in- 
tention should  not  be  apparent  on  the  face  of  the  constitu- 
tion. We  find,  (art.  4,)  that  the  constitution  has  declared, 
that  full  faith  and  credit  shall  be  given  in  each  state  to  the 
judicial  proceedings  of  every  other  state.  But  no  like  pro- 
vision has  been  made  in  respect  to  the  judgments  of  the 
courts  of  the  United  States,  because  they  were  plainly  sup- 
posed to  be  of  paramount  and  absolute  obligation  through- 
out all  the  states.  If  the  judgments  of  the  supreme  court 
upon  constitutional  questions  are  conclusive  and  binding 
upon  the  citizens  at  large,  must  they  not  be  equally  con- 
clusive upon  the  states?  If  the  states  are  parties  to  that 
instrument,  are  not  the  people  of  the  states  also  parties? 

*'  §  379.  It  has  been  said,  '  that  however  true  it  may  be, 
that  the  judicial  department  is,  in  all  questions  submitted 
to  it  by  the  forms  of  the  constitution,  to  decide  in  the  last 
resort,  this  resort  must  necessarily  be  deemed  the  last,  in 
relation  to  the  other  departments  of  the  government,  not  in 
relation  to  the  rights  of  the  parties  to  the  constitutional 
compact,  from  which  the  judicial,  as  well  as  the  other  de- 
partments hold  their  delegated  trusts.  On  any  other  hypo- 
thesis, the  delegation  of  judicial  power  would  annul  the 
authority  delegating  it ;  and  the  concurrence  of  this  depart- 
ment with  the  others  in  usurped  powers  might  subvert  for 
ever,  and  beyond  the  possible  reach  of  any  rightful  reme- 
dy, the  very  constitution,  which  all  were  instituted  to  pre- 
serve.'(m)     Now,  it  is  certainly  possible,  that  all  the  de- 

(m)  Madison's  Virginia  Report,  Jan.  1800,  p.  8,  9. 


CONSTITUTIONAL    LAW.  217 

partments  of  a  government  may  conspire  to  subvert  the 
constitution  of  that  government,  by  which  they  are  created. 
But  if  they  should  so  conspire,  there  would  still  remain  an 
adequate  remedy  to  redress  the  evil.  In  the  first  place, 
the  people,  by  the  exercise  of  the  elective  franchise,  can 
easily  check  and  remedy  any  dangerous,  palpable  and  de- 
liberate infraction  of  the  constitution  in  two  of  the  great 
departments  of  government ;  and,  in  the  third  department, 
they  can  remove  the  judges,  by  impeachment,  for  any  cor- 
rupt conspiracies.  Besides  these  ordinary  remedies,  there 
is  a  still  more  extensive  one,  embodied  in  the  form  of  the 
constitution,  by  the  power  of  amending  it,  which  is  al- 
ways in  the  power  of  three  fourths  of  the  states.  It  is  a 
supposition  not  to  be  endured  for  a  moment,  that  three 
fourths  of  the  states  would  conspire  in  any  deliberate,  dan- 
gerous, and  palpable  breach  of  the  constitution.  And  if 
the  judicial  department  alone  should  attempt  any  usurpa- 
tion, congress,  in  its  legislative  capacity,  has  full  power 
to  abrogate  the  injurious  effects  of  such  a  decision.  Prac- 
tically speaking,  therefore,  there  can  be  very  little  danger 
of  any  such  usurpation  or  delil)erate  breach. 

"§  380.  But  it  is  always  a  doubtful  mode  of  reasoning 
to  argue  from  the  possible  abuse  of  powers,  that  they  do 
not  exist. (w)  Let  us  look  for  a  moment  at  the  conse- 
quences, which  flow  from  the  doctrine  on  the  other  side. 
There  are  now  twenty-four  states  in  the  Union,  and  each 
has,  in  its  sovereign  capacity,  a  right  to  decide  for  itself  in 
the  last  resort,  what  is  the  true  construction  of  the  consti- 
tution ;  what  are  its  powers ;  and  what  are  the  obligations 
founded  on  it.  We  may,  then,  have,  in  the  free  exercise 
of  that  right,  twenty-four  honest,  but  different  expositions 
of  every  power  in  that  constitution,  and  of  every  obligation 
involved  in  it.  What  one  state  may  deny,  another  may 
assert ;  what  one  may  assert  at  one  time,  it  may  deny  at 
another  time.  This  is  not  mere  supposition.  It  has,  in 
point  of  fact,  taken  place.  There  never  has  been  a  single 
constitutional  question  agitated,  where  different  states,  if 
they  have  expressed  any  opinion,  have  not  expressed  dif- 
ferent opinions;  and  there  have  been,  and,  from  the  fluc- 
tuating nature  of  legislative  bodies,  it  may  be  supposed, 

(n)  See  .Anderson  v.  Dunn,  G  Wheaton's  R.  204,  232. 

19 


218  LECTURES    ON 

that  there  will  continue  to  be,  cases,  in  which  the  same 
state  will  at  different  times  hold  different  opinions  on  the 
same  question.  Massachusetts  at  one  time  thought  the 
embargo  of  1807  unconstitutional ;  at  another  a  majority, 
from  the  change  of  parties,  was  as  decidedly  the  other 
way.  Virginia,  in  1810,  thought  that  the  supreme  court 
was  the  common  arbiter  ;  in  1829  she  thought  differently  ;(o) 
what,  then,  is  to  become  of  the  constitution,  if  its  powers 
are  thus  perpetually  to  be  the  subject  of  debate  and  con- 
troversy 1  What  exposition  is  to  be  allowed  to  be  of  au- 
thority? Is  the  exposition  of  one  state  to  be  of  authority 
there,  and  the  reverse  to  be  of  authority  in  a  neighbouring 
state,  entertaining  an  opposite  exposition!  Then,  there 
would  be  at  no  time  in  the  United  States  the  same  consti- 
tution in  operation  over  the  whole  people.  Is  a  power, 
which  is  doubted,  or  denied  by  a  single  state,  to  be  sus- 
pended either  wholly,  or  in  that  state?  Then,  the  consti- 
tution is  practically  gone,  as  a  uniform  system,  or  indeed, 
as  any  system  at  all,  at  the  pleasure  of  any  state.  If  the 
power  to  nullify  the  constitution  exists  in  a  single  state,  it 
may  rightfully  exercise  it  at  its  pleasure.  Would  not  this 
be  a  far  more  dangerous  and  mischievous  power,  than  a 
power  granted  by  all  the  states  to  the  judiciary  to  construe 
the  constitution  ?  Would  not  a  tribunal,  appointed  under 
the  authority  of  all,  be  more  safe,  than  twenty-four  tribu- 
nals acting  at  their  own  pleasure,  and  upon  no  common 
principles  and  co-operation  ?  Suppose  congress  should  de- 
clare war;  shall  one  state  have  power  to  suspend  it?  Sup- 
pose congress  should  make  peace;  shall  one  state  have 
power  to  involve  the  whole  country  in  war?  Suppose  the 
president  and  senate  should  make  a  treaty ;  shall  one  state 
declare  it  a  nullity,  or  subject  the  whole  country  to  repri- 
sals for  refusing  to  obey  it?  Yet,  if  every  state  may  for 
itself  judge  of  its  obligations  under  the  constitution,  it 
may  disobey  a  particular  law  or  treaty,  because  it  may 
deem  it  an  unconstitutional  exercise  of  power,  although 
every  other  state  shall  concur  in  a  contrary  opinion.  Sup- 
pose congress  should  lay  a  tax  upon  imports  burthensome 
to  a  particular   state,  or  for  purposes,  which  such  state 

(o)  Dane's  App.  S  44,  45,  p.  52  to  59  ;  §  54,  p.  66;  4  Elliot's  De- 
bates, 338,  339. 


CONSTITUTIONAL    LAW.  219 

deems  unconstitutional,  and  yet  all  the  other  states  are  in 
its  favour;  is  the  law  laying  the  tax  to  become  a  nullity? 
That  would  be  to  allow  one  state  to  withdraw  a  power 
from  the  Union,  which  was  given  by  the  people  of  all  the 
states.  That  would  be  to  make  the  general  government 
the  servant  of  twenty-four  masters,  of  different  wills  and 
different  purposes,  and  yet  bound  to  obey  them  all.(p) 

"§  381.  The  argument,  therefore,  arising  from  a  possi- 
bility of  an  abuse  of  power,  is,  to  say  the  least  of  it,  quite 
as  strong  the  other  way.  The  constitution  is  in  quite  as 
perilous  a  state  from  the  power  of  overthrowing  it  lodged 
in  every  state  in  the  Union,  as  it  can  be  by  being  lodged 
in  any  department  of  the  federal  government.  There  is 
this  difference,  however,  in  the  cases,  that  if  there  be  fe- 
deral usurpation,  it  may  be  checked  by  the  people  of  all 
the  states  in  a  constitutional  way.  If  there  be  usurpation 
by  a  single  state,  it  is  upon  the  theory  we  are  considering, 
irremediable.  Other  difficulties,  however,  attend  the  rea- 
soning we  are  considering.  When  it  is  said,  that  the  de- 
cision of  the  supreme  court  in  the  last  resort  is  obligatory, 
and  final  'in  relation  to  the  authorities  of  the  other  de- 
partments of  the  government,'  is  it  meant  of  the  federal 
government  only,  or  of  the  states  also  ?  If  of  the  former 
only,  then  the  constitution  is  no  longer  the  supreme  law  of 
the  land,  although  all  the  state  functionaries  are  bound  by 
an  oath  to  support  it.  If  of  the  latter  also,  then  it  is  obli- 
gatory upon  the  state  legislatures,  executives  and  judicia- 
ries. It  binds  them ;  and  yet  it  does  not  bind  the  people 
of  the  states,  or  the  states  in  their  sovereign  capacity.  The 
states  may  maintain  one  construction  of  it,  and  the  func- 
tionaries of  the  state  are  bound  by  another.  If,  on  the 
other  hand,  the  state  functionaries  are  to  follow  the  construc- 
tion of  the  state,  in  opposition  to  the  construction  of  the  su- 
preme court,  then  the  constitution,  as  actually  administered 
by  the  different  functionaries,  is  different;  and  the  duties 
required  of  them  may  be  opposite,  and  in  collision  with 
each  other.  If  such  a  state  of  things  is  the  just  result  of 
the  reasoning,  may  it  not  justly  be  suspected,  that  the  rea- 
soning itself  is  unsound? 

(p)  Webster's  Speeches,  420;  4  Elliot's  Debates,  339. 


220  LECTURES    ON 

"  §  382.  Again  ;  it  is  a  part  of  this  argument,  that  the 
judicial  interpretation  is  not  binding  'in  relation  to  the 
rights  of  the  parties  to  the  constitutional  compact.' — '  On 
any  other  hypothesis  the  delegation  of  judicial  power 
would  annul  the  authority  delegating  it.'  Who  then  are 
the  parties  to  this  contract?  Who  did  delegate  the  judi- 
cial power  ?  Let  the  instrument  answer  for  itself.  The 
people  of  the  United  States  are  the  parties  to  the  constitu- 
tion. The  people  of  the  United  States  delegated  the  ju- 
dicial power.  It  was  not  a  delegation  by  the  people  of  one 
state,  but  by  the  people  of  all  the  states.  Why  then  is  not 
a  judicial  decision  binding  in  each  state,  until  all,  who  de- 
legated the  power,  in  some  constitutional  manner  concur 
in  annulling  or  overruling  the  decision?  Where  shall  we 
find  the  clause,  which  gives  the  power  to  each  state  to  con- 
strue the  constitution  for  all ;  and  thus  of  itself  to  super- 
sede in  its  own  favour  the  construction  of  all  the  rest? 
Would  not  this  be  justly  deemed  a  delegation  of  judi- 
cial power,  which  would  annul  the  authority  delegating 
it  1{q)  Since  the  whole  people  of  the  United  States  have 
concurred  in  establishing  the  constitution,  it  would  seem 
most  consonant  with  reason  to  presume,  in  the  absence  of 
all  contrary  stipulations,  that  they  did  not  mean,  that  its 
obligatory  force  should  depend  upon  the  dictate  or  opinion 
of  any  single  state.  Even  under  the  confederation,  (as  has 
been  already  stated,)  it  was  unanimously  resolved  by  con- 
gress, that  '  as  state  legislatures  are  not  competent  to  the 
making  of  such  compacts  or  treaties,  [with  foreign  states,] 
so  neither  are  theij  eompctcnt  in  that  capaeitij  authorita- 
tively to  cheidc  on,  or  ascertain  the  construction  and  sense 
of  them.'  And  the  reasoning,  by  which  this  opinion  is 
supported,  seems  absolutely  unanswerable. (r)  If  this  was 
true  under  such  an  instrument,  and  that  construction  was 
avowed  before  the  whole  American  people,  and  brought 
home  to  the  knowledge  of  the  state  legislatures,  how  can 

((/)  There  is  vast  force  in  the  reasoning  of  Mr.  Webster  on  this 
subject,  in  liis  jrreat  speech  on  Mr.  Foot's  resolutions  in  the  se- 
nate, in  1830,  wliich  well  deserves  the  attention  of  every  states- 
man and  jurist.  See  4  Elliot's  Debates,  338,  330,  343,  344,  and 
"Webster's  Speeches,  p.  407,  408,  418,  41'),  420:   Id.  430,  431,  432. 

(r)  Journals  of  Congress,  April  13,  1787,  p.  32,  &c.  Rawle  on 
the  Constitution,  App.  2,  p.  316,  &c. 


CONSTITUTIONAL    LAW.  221 

we  avoid  the  inference,  that  under  the  constitution,  where 
an  express  judicial  power  in  cases  arising  under  the  con- 
stitution was  provided  for,  the  people  must  have  understood 
and  intended,  that  the  states  should  have  no  right  to  ques- 
tion, or  control  such  judicial  interpretation? 

"  §  383.  In  the  next  place,  as  the  judicial  power  extends 
to  all  cases  arising  under  the  constitution,  and  that  consti- 
tution is  declared  to  be  the  supreme  law,  that  supremacy 
would  naturally  be  construed  to  extend,  not  only  over  the 
citizens,  but  over  the  states.(5)  This,  however,  is  not  left 
to  implication,  for  it  is  declared  to  be  the  supreme  law  of 
the  land,  '  any  thing  in  the  constitution  or  laws  of  any 
state  to  the  contrary  notwithstanding.'  The  people  of  any 
state  cannot,  then,  by  any  alteration  of  their  state  constitu- 
tion, destroy  or  impair  that  supremacy.  How,  then,  can 
they  do  it  in  any  other  less  direct  manner  ?  Now,  it  is  the 
proper  function  of  the  judicial  department  to  interpret  laws, 
and  by  the  very  terms  of  the  constitution  to  interpret  the 
supreme  law.  Its  interpretation,  then,  becomes  obligatory 
and  conclusive  upon  all  the  departments  of  the  federal  go- 
vernment, and  upon  the  whole  people,  so  far  as  their  rights 
and  duties  are  derived  from,  or  affected  by  that  constitu- 
tion. If  then  all  the  departments  of  the  national  govern- 
ment may  rightfully  exercise  all  the  powers,  which  the  ju- 
dicial department  has,  by  its  interpretation,  declared  to  be 
granted  by  the  constitution  ;  and  are  prohibited  from  exer- 
cising those,  which  are  thus  declared  not  to  be  granted  by 
it,  would  it  not  be  a  solecism  to  hold,  notwithstanding,  that 
such  rightful  exercise  should  not  be  deemed  the  supreme 
law  of  the  land,  and  such  prohibited  powers  should  still  be 
deemed  granted?  It  would  seem  repugnant  to  the  first  no- 
tions of  justice,  that  in  respect  to  the  same  instrument  of 
government,  different  powers,  and  duties,  and  obligations 
should  arise,  and  different  rules  should  prevail,  at  the  same 
time  among  the  governed,  from  a  right  of  interpreting  the 
same  words  (manifestly  used  in  one  sense  only)  in  differ- 
ent, nay,  in  opposite  senses.  If  there  ever  was  a  case,  in 
which  uniformity  of  interpretation  might  well  be  deemed 
a  necessary  postulate,  it  would  seem  to  be  that  of  a  funda- 
mental law  of  a  government.     It  might  otherwise  follow, 

(s)  The  Federalist,  No.  33. 
19* 


222  LECTURES    ON 

that  the  same  individual,  as  a  magistrate,  might  be  bound 
by  one  rule,  and  in  his  private  capacity  by  another,  at  the 
very  same  moment. 

"  §  384.  There  would  be  neither  wisdom  nor  policy  in 
such  a  doctrine  ;  and  it  would  deliver  over  the  constitution 
to  interminable  doubts,  founded  upon  the  fluctuating  opi- 
nions and  characters  of  those,  who  should,  from  time  to 
time,  be  called  to  administer  it.  Such  a  constitution  could, 
in  no  just  sense,  be  deemed  a  law,  much  less  a  supreme  or 
fundamental  law.  It  would  have  none  of  the  certainty  or 
universality,  which  are  the  proper  attributes  of  such  a  so- 
vereign rule.  It  would  entail  upon  us  all  the  miserable 
servitude,  which  has  been  deprecated,  as  the  result  of  vague 
and  uncertain  jurisprudence.  Miscra  est  servitus,  ubijus 
est  vagum  aut  incertum.  It  would  subject  us  to  constant 
dissensions,  and  perhaps  to  civil  broils,  from  the  perpetu- 
ally recurring  conflicts  upon  constitutional  questions.  On 
the  other  hand,  the  worst,  that  could  happen  from  a  wrong 
decision  of  the  judicial  department,  would  be,  that  it  might 
require  the  interposition  of  congress,  or,  in  the  last  resort, 
of  the  amendatory  power  of  the  states,  to  redress  the  grie- 
vance. 

"  §  385.  We  find  the  power  to  construe  the  constitution 
expressly  confided  to  the  judicial  department,  witiiout  any 
limitation  or  qualification,  as  to  its  conclusiveness.  Who, 
then,  is  at  liberty,  by  general  implications,  not  from  the 
terms  of  the  instrument,  but  from  mere  theory,  and  as- 
sumed reservations  of  sovereign  right,  to  insert  such  a  li- 
mitation or  qualification  ?  We  find,  that  to  produce  uni- 
formity of  interpretation,  and  to  preserve  the  constitution, 
as  a  perpetual  bond  of  union,  a  supreme  arbiter  or  autho- 
rity of  construing  is,  if  not  absolutely  indispensable,  at 
least,  of  the  highest  possible  practical  utility  and  impor- 
tance. Who,  then,  is  at  liberty  to  reason  down  the  terms 
of  the  constitution,  so  as  to  exclude  their  natural  force  and 
operation  ? 

"  §  386.  We  find  that  it  is  the  known  course  of  the  ju- 
dicial department  of  the  several  states  to  decide  in  the  last 
resort  upon  all  constitutional  questions  arising  in  judg- 
ment;* and  that  this  has  always  been  maintained  as  a 

*  [So  in  Virginia  in  the  case  of  Kemper  v.  Hmckins,  1  Virginia 
Cases,  p.  20.] 


CONSTITUTIONAL    LAW.  223 

rightful  exercise  of  authority,  and  conclusive  upon  the 
whole  state. (<)  As  such,  it  has  been  constantly  approved 
by  the  people,  and  never  withdrawn  from  the  courts  by  any 
amendment  of  their  constitutions,  when  the  people  have 
been  called  to  revise  them.  We  find,  that  the  people  of 
the  several  states  have  constantly  relied  upon  this  last  ju- 
dicial appeal,  as  the  bulwark  of  their  state  rights  and  liber- 
ties ;  and  that  it  is  in  perfect  consonance  with  the  whole 
structure  of  the  jurisprudence  of  the  common  law.  Un- 
der such  circumstances,  is  it  not  most  natural  to  presume, 
that  the  same  rule  was  intended  to  be  applied  to  the  con- 
stitution of  the  United  States?  And  when  we  find,  that 
the  judicial  department  of  the  United  States  is  actually  en- 
trusted with  a  like  power,  is  it  not  an  irresistible  presump- 
tion, that  it  had  the  same  object,  and  was  to  have  the  same 
universally  conclusive  effect?  Even  under  the  confedera- 
tion, an  instrument  framed  with  infinitely  more  jealousy 
and  deference  for  state  rights,  the  judgments  of  the  judi- 
cial department  appointed  to  decide  controversies  between 
states  was  declared  to  be  final  and  conclusive;  and  the  ap- 
pellate power  in  other  cases  was  held  to  overrule  all  state 
decisions  and  state  legislation. («) 

"§  387.  If,  then,  reasoning  from  the  terms  of  the  con- 
stitution, and  the  known  principles  of  our  jurisprudence, 
the  appropriate  conclusion  is,  that  the  judicial  department 
of  the  United  States  is,  in  the  last  resort,  the  final  exposi- 
tor of  the  constitution,  as  to  all  questions  of  a  judicial  na- 
ture ;  let  us  see,  in  the  next  place,  how  far  this  reasoning 
acquires  confirmation  from  the  past  history  of  the  consti- 
tution, and  the  practice  under  it. 

"  §  388.  That  this  view  of  the  constitution  was  taken 
by  its  framers  and  friends,  and  was  submitted  to  the  peo- 
ple before  its  adoption,  is  positively  certain.  The  Fede- 
ra!ist(?;)  says,  '  Under  the  national  government,  treaties  and 
articles  of  treaties,  as  well  as  the  law  of  nations,  will  al- 
ways be  expounded  in  one  sense,  and  executed  in  the  same 

(0  2  Elliot's  Debates,  248,  328,  329,  395 ;  Grimke's  speech  in 
1828,  p.  25,  «fec. ;  Dane's  Append.  §  44,  45,  p.  52  to  59;  Id.  §  48, 
p.  62. 

(m)  Dane's  App.  §  52,  p.  65;  Penhallow  v.  Doane,  3  Dall.  54; 
Journals  of  Congress,  1779,  vol .  5,  p.  86  to  90 ;  4  Cranch  2. 

(v)  The  Federalist,  No.  3. 


224  LECTURES    ON 

manner ;  whereas,  adjudications  on  the  same  points  and 
questions  in  thirteen  states,  or  tliree  or  four  confederacies, 
will  not  always  accord,  or  be  consistent ;  and  that  as  well 
from  the  variety  of  independent  courts  and  judges  appoint- 
ed by  different  and  independent  governments,  as  from  the 
different  local  laws,  which  may  affect  and  influence  them. 
The  wisdom  of  the  convention  in  committing  such  ques- 
tions to  the  jurisdiction  and  judgment  of  courts  appointed 
by,  and  responsible  only  to,  one  national  government,  can- 
not be  too  much  commended.'  Again,  referring  to  the  ob- 
jection taken,  that  the  government  was  national,  and  not  a 
confederacy  of  sovereign  states,  and  after  stating,  that  the 
jurisdiction  of  the  national  government  extended  to  certain 
enumerated  objects  only,  and  left  the  residue  to  the  seve- 
ral states,  it  proceeds  to  say  :{w)  '  It  is  true,  that  in  con- 
troversies between  the  two  jurisdictions  (state  and  national) 
the  tribunal,  lohich  is  ultimatchj  to  decide,  is  to  be  estab- 
lished under  the  general  government.  But  this  does  not 
change  the  principle  of  the  case.  The  decision  is  to  be 
impartially  made  according  to  the  rules  of  the  constitution, 
and  all  the  usual  and  most  effectual  precautions  are  taken 
to  secure  this  impartiality.  Some  such  tribunal  is  clearly 
essential  to  prevent  an  appeal  to  the  sword,  and  a  dissolu- 
tion of  the  compact.  And  that  it  ought  to  be  established 
under  the  general,  rather  than  under  the  local  govern- 
ments, or,  to  speak  more  properly,  that  it  could  be  safely 
established  under  the  first  alone,  is  a  position  not  likely  to 
be  combated.' (r) 

"§  389.  The  subject  is  still  more  elaborately  consider- 
ed in  another  number, (y)  which  treats  of  the  judicial  de- 
partment in  relation  to  the  extent  of  its  powers.  It  is  there 
said,  that  there  ought  always  to  be  a  constitutional  method 
of  giving  efiicacy  to  constitutional  provisions;  that  if  there 
are  such  things  as  political  axioms,  the  propriety  of  the  ju- 
dicial department  of  a  government  being  co-extensive  with 
its  legislature,  may  be  ranked  among  the  number  ;{z)  that 

{w)  The  Federalist,  No  39. 

(x)  See  also  the  Federalist,  No.  33. 

\y)  The  Federalist,  No.  80. 

(z)  The  same  remarks  will  be  found  pressed  with  great  force  by 
Mr.  chief  justice  Marshall,  in  delivering  the  opinion  of  the  court 
in  Cohens  v.  Virginia^  (6  Wheat.  2G4,  3d4.) 


CONSTITUTIONAL    LAW.  225 

the  mere  necessity  of  uniformity  in  the  interpretation  of 
the  national  law  decides  the  question ;  that  thirteen  inde- 
pendent courts  of  final  jurisdiction  over  the  same  causes 
is  a  hydra  of  government,  from  which  nothing  but  contra- 
diction and  confusion  can  proceed ;  that  controversies  be- 
tween the  nation  and  its  members  can  only  be  properly  re- 
ferred to  the  national  tribunal ;  that  the  peace  of  the  whole 
ought  not  to  be  left  at  the  disposal  of  a  part ;  and  that 
whatever  practices  may  have  a  tendency  to  disturb  the  har- 
mony of  the  states,  are  proper  objects  of  federal  superin- 
tendence and  control. (a) 

(a)  In  The  Federalist,  No.  78  and  82,  the  same  course  of  reason- 
ing is  pursued,  and  the  final  nature  of  the  appellate  jurisdiction  of 
the  supreme  court  is  largely  insisted  on.  In  the  convention  of  Con- 
necticut, Mr.  Ellsworth  (afterwards  chief  justice  of  the  United 
States)  used  the  following  language  :  "  This  constitution  defines 
the  extent  of  the  powers  of  the  general  government.  If  the  gene- 
ral legislature  should  at  any  time  overleap  their  limits,  the  judicial 
department  is  the  constitutional  check.  If  the  United  States  go 
beyond  their  powers;  if  they  make  a  law,  which  the  constitution 
does  not  authorize,  it  is  void;  and  the  judicial  power,  the  national 
judges,  who,  to  secure  their  impartiality,  are  to  be  made  indepen- 
dent, will  declare  it  void.  On  the  other  hand,  if  the  states  go  be- 
yond their  limits ;  if  they  make  a  law,  which  is  a  usurpation  upon 
the  general  government,  the  law  is  void,  and  upright  and  indepen- 
dent judges  will  declare  it.  Still,  however,  if  the  United  States 
and  the  individual  states  will  quarrel;  if  they  want  to  fight,  they 
may  do  it,  and  no  frame  of  government  can  possibly  prevent  it." 
In  the  debates  in  the  South  Carolina  legislature,  when  the  subject 
of  calling  a  convention  to  ratify  or  reject  the  constitution  was  be- 
fore them,*  Mr.  Charles  Pinckney  (one  of  the  members  of  the  con- 
vention) avowed  the  doctrine  in  the  strongest  terms.  "  That  a  su- 
preme federal  jurisdiction  was  indispensable,"  said  he,  "cannot be 
denied.  It  is  equally  true,  that  in  order  to  ensure  the  administra- 
tion of  justice,  it  was  necessary  to  give  all  the  powers,  original  as 
well  as  appellate,  the  constitution  lias  enumerated.  Without  it  we 
could  not  expect  a  due  observance  of  treaties ;  that  the  state  judi- 
ciaries would  confine  themselves  within  their  proper  sphere ;  or 
that  a  general  sense  of  justice  would  pervade  the  Union,  «&c.  That 
to  ensure  these,  extensive  authorities  were  necessary  ;  particularly 
so,  were  they  in  a  tribunal,  constituted  as  this  is,  whose  duty  it 
would  be,  not  only  to  decide  all  national  questions,  which  should 
arise  within  the  Union  ;  but  to  control  and  keep  the  state  judicia- 
ries within  their  proper  limits,  whenever  they  should  attempt  to 
interfere  with  the  power." 

♦Debates  in  1788,  printed  by  A.  E.  Miller,  1831,  Charleston,  p.  7. 


226  LECTURES    ON 

"  §  390.  The  same  doctrine  was  constantly  avowed  in 
the  state  conventions,  called  to  ratify  the  constitution. 
With  some  persons  it  formed  a  strong  objection  to  the  con- 
stitution ;  with  others  it  was  deemed  vital  to  its  existence 
and  value. (6)  So,  that  it  is  indisputable,  that  the  consti- 
tution was  adopted  under  a  full  knowledge  of  this  exposi- 
tion of  its  grant  of  power  to  the  judicial  department. (c) 

"§391.  This  is  not  all.  The  constitution  has  now 
been  in  full  operation  more  than  forty  years ;  and  during 
this  period  the  supreme  court  has  constantly  exercised  this 
power  of  final  interpretation  in  relation,  not  only  to  the 
constitution,  and  laws  of  the  Union,  but  in  relation  to  state 
acts  and  state  constitutions  and  laws,  so  far  as  they  affect- 
ed the  constitution,  and  laws,  and  treaties  of  the  United 
States. (t?)  Their  decisions  upon  these  grave  questions 
have  never  been  repudiated,  or  impaired  by  congress. (c) 
No  state  has  ever  deliberately  or  forcibly  resisted  the  exe- 

(b)  It  would  occupy  too  much  space  to  quote  the  passages  at 
large.  Take  for  an  instance,  in  the  Virginia  debates,  Mr.  Madi- 
son's remarks.  "It  may  be  a  misfortune,  that  in  organizing  any 
government,  the  explication  of  its  authority  should  be  left  to  any  of 
its  co-ordinate  branches.  There  is  no  exaiflplc  in  any  country, where 
it  is  otherwise.  There  is  no  new  policy  in  submitting  it  to  the  judi- 
ciary of  the  United  States."  2  Elliot's  Debates,  390.  See  also  Id.  330, 
383,  395,  400,  404,  418.  See  also  North  Carolina  Debates,  3  El- 
liot's Debates,  12.5,  127,  128,  130,  133,  134,  139,  141,  142,  143; 
Pennsylvania  Debates,  3  Elliot's  Debates,  280,  313.  Mr.  Luther 
Martin,  in  his  letter  to  the  Maryland  convention,  said  :  "  By  the 
third  article  the  judicial  power  is  vested  in  one  supreme  court, 
&c.  These  courts,  and  these  only,  will  have  a  right  to  decide  upon 
the  laws  of  the  United  States,  and  all  questions  arising  upon  their 
construction,  &c.  Whether,  therefore,  any  laws,  &c.  of  congress, 
or  acts  of  its  president,  &c.  are  contrary  to,  or  warranted  by  the 
constitution,  rests  only  with  tlie  judges,  who  are  appointed  by  con- 
gress to  determine;  bij  vhose  determinations  every  state  is  bound.'' 
3  Elliot's  Debates,  44,  45;  Yates's  Minutes,  &c.  See  also  the  Fe- 
deralist, No.  78. 

(c)  See  Mr.  Pinckney's  observations,  cited  in  Grimke's  speech 
in  1828,  p.  85,87. 

(d)  Dane's  App.  §  44,  p.  53,  54,55;  Grimke's  speech,  1828,  p. 
34  to  42. 

(e)  In  the  debates  in  the  first  congress  organized  under  the  con- 
stitution, the  same  doctrine  was  openly  avowed,  as  indeed  it  has 
constantly  been  by  the  majority  of  congress  at  all  subsequent  pe- 
riods. See  1  Lloyd's  Debates,  219  to  596  ;  2  Lloyd's  Debates,  284 
to  327. 


CONSTITUTIONAL    LAW.  227 

cution  of  the  judgments  founded  upon  them ;  and  the  high- 
est state  tribunals  have,  with  scarcely  a  single  exception, 
acquiesced  in,  and,  in  most  instances,  assisted  in  execu- 
ting thera.(^)  During  the  same  period,  eleven  states  have 
been  admitted  into  the  Union,  under  a  full  persuasion,  that 
the  same  power  would  be  exerted  over  them.  Many  of 
the  states  have,  at  different  times  within  the  same  period, 
been  called  upon  to  consider,  and  examine  the  grounds,  on 
which  the  doctrine  has  been  maintained,  at  the  solicitation 
of  other  states,  which  felt,  that  it  operated  injuriously,  or 
might  operate  injuriously,  upon  their  interests.  A  great 
majority  of  the  states,  which  have  been  thus  called  upon 
in  their  legislative  capacities  to  express  opinions,  have 
maintained  the  correctness  of  the  doctrine,  and  the  bene- 
ficial effects  of  the  power,  as  a  bond  of  union,  in  terms  of 
the  most  unequivocal  nature.(o-)     Whenever  any  amend- 

(/)  Chief  justice  M'Kean,  in  Commonwealth  v.  Cobbett,  (3  Dall. 
473,)  seems Jto  have  adopted  a  modified  doctrine,  and  to  have 
held,  that  the  supreme  court  was  not  the  common  arbiter  ;  but  if 
not,  the  only  remedy  was,  not  by  a  state  deciding  for  itself,  as  in 
case  of  a  treaty  between  independent  g-overnments,  but  by  a  con- 
stitutional amendment  by  the  states.  But  see,  on  the  otlier  hand, 
the  opinion  of  chief  justice  Spencer,  in  .indreics  v.  Mo7itgomery, 
19  Johns.  R.  164. 

(g)  Massachusetts,  in  her  resolve  of  February  12,  1799,  (p.  57,) 
in  answer  to  the  resolutions  of  Virginia  of  179rf,  declared,  "  that 
the  decision  of  all  cases  in  law  and  equity,  arising  under  the  con- 
stitution of  the  United  States,  and  the  construction  of  all  laws 
made  in  pursuance  thereof,  are  exclusively  vested  by  the  people 
in  the  judicial  courts  of  the  United  States  ;"  and  "  that  the  people 
in  that  solenan  compact,  which  is  declared  to  be  the  supreme  law  of 
the  land,  have  not  constituted  the  state  legislatures  the  judges  of 
the  acts  or  measures  of  the  federal  government,  but  have  confided 
to  them  the  power  of  proposing  such  amendments,"  &c.  ;  and 
"that  by  this  construction  of  the  constitution,  an  amicable  and 
dispassionate  remedy  is  pointed  out  for  any  evil,  which  experience 
may  prove  to  exist,  and  the  peace  and  prosperity  of  the  United 
States  may  be  preserved  without  interruption."  See  also  Dane's 
App.  §  44,  p.  56;  Id.  80.  Mr.  Webster's  speech  in  the  senate,  in 
1830,  contains  an  admirable  exposition  of  the  same  doctrines. 
Webster's  Speeches,  410,  419,  420,  421.  In  June  1821,  the  house 
of  representatives  of  New  Hampshire  passed  certain  resolutions, 
(172  yeas  to  9  nays,)  drawn  up  (as  is  understood)  by  one  of  her 
most  distinguished  statesmen,  asserting  the  same  doctrines.  Dela- 
ware, in  January  1831,  and  Connecticut  and  Massachusetts  held 
the  same  in  May  1831. 


228  LECTURES    ON 

merit  has  been  proposed  to  change  the  tribunal,  and  sub- 
stitute another  common  umpire  or  interpreter,  it  has  rarely 
received  the  concurrence  of  more  than  two  or  three  states, 
and  has  been  uniformly  rejected  by  a  great  majority,  either 
silently,  or  by  an  express  dissent.  And  instances  have  oc- 
curred, in  which  the  legislature  of  the  same  state  has,  at 
different  times,  avowed  opposite  opinions,  approving  at  one 
time,  what  it  had  denied,  or  at  least  questioned,  at  another. 
So,  that  it  may  be  asserted  with  entire  confidence,  that  for 
forty  years  three  fourths  of  all  the  states  composing  the 
Union  have  expressly  assented  to,  or  silently  approved,  this 
construction  of  the  constitution,  and  have  resisted  every 
effort  to  restrict,  or  alter  it.  A  weight  of  public  opinion 
among  the  people  for  such  a  period,  uniformly  thrown  into 
one  scale  so  strongly,  and  so  decisively,  in  the  midst  of  all 
the  extraordinary  changes  of  parties,  the  events  of  peace  and 
of  war,  and  the  trying  conflicts  of  public  policy  and  state 
interests,  is  perhaps  unexampled  in  the  history  of  all  other 
free  governments. (/i)  It  affords  as  satisfactory  a  testimony 
in  favour  of  the  just  and  safe  operation  of  the  system,  as 
can  well  be  imagined  ;  and,  as  a  commentary  upon  the  con- 
stitution itself,  it  is  as  absolutely  conclusive,  as  any  ever 
can  be,  and  affords  the  only  escape  from  the  occurrence  of 

(/()  Virginia  and  Kentucky  denied  the  power  in  1798  and  1800; 
Massachusetts,  Delaware,  Rhode  Island,  New  York,  Connecticut, 
New  Hampshire  and  Vermont  disapproved  of  the  Virginia  resolu- 
tions, and  passed  counter  resolutions.  (North  American  Review, 
October  1830,  p.  500.)  No  other  state  appears  to  have  approved 
the  Virginia  resolutions.  (Ibid.)  In  1810  Pennsylvania  proposed 
the  appointment  of  another  tribunal  than  the  supreme  court  to  de- 
termine disputes  between  tlie  general  and  state  governments.  Vir- 
ginia, on  that  occasion,  affirmed,  that  the  supreme  court  was  the 
proper  tribunal  ;  and  in  that  opinion  New  Hampshire,  Vermont, 
North  Carolina,  Maryland,  Georgia,  Tennessee,  Kentucky  and 
New  Jersey  concurred  ;  and  no  one  state  approved  of  the  amend- 
ment. (North  American  Review,  October  1830,  p.  507  to  512; 
Dane's  App.  ^  55,  p.  67;  G  Wlieat.  R.  358,  note.)  Recently,  in 
March  1831,  Pennsylvania  has  resoh-ed,  that  the  25th  section  of 
the  judiciary  act  of  1789,  ch.  20,  which  gives  the  supreme  court 
appellate  jurisdiction  from  state  courts  on  constitutional  questions, 
is  authorized  by  the  constitution,  and  sanctioned  by  experience, 
and  also  all  other  laws  empowering  the  federal  judiciary  to  main- 
tain the  supreme  laws. 


CONSTITUTIONAL    LAW.  229 

civil  conflicts,  and  the  delivery  over  of  the  subject  to  inter- 
minable disputes. (/) 

(i)  Upon  this  subject  the  speech  of  Mr.  Webster  in  the  senate, 
in  1830,  presents  the  whole  argument  in  a  very  condensed  and 
powerful  form.  The  following  passage  is  selected  as  peculiarly  ap- 
propriate :  "  The  people,  then,  sir,  erected  this  government.  They 
gave  it  a  constitution,  and  in  that  constitution  they  have  enume- 
rated the  powers,  which  they  bestow  on  it.  They  have  made  it  a 
limited  government.  They  have  defined  its  authority.  They  have 
restrained  it  to  the  exercise  of  such  powers,  as  are  granted  ;  and 
all  others,  they  declare,  are  reserved  to  the  states  or  the  people. 
But,  sir,  they  have  not  stopped  here.  If  they  had,  they  would 
have  accomplished  but  half  their  work.  No  definition  can  be  so 
clear,  as  to  avoid  possibility  of  doubt ;  no  limitation  so  precise,  as 
to  exclude  all  uncertainty.  Who,  then,  shall  construe  this  grant 
of  the  people  .'  Who  shall  interpret  their  will,  where  it  may  be 
supposed  they  have  left  it  doubtful  1  With  whom  do  they  repose  this 
ultimate  right  of  deciding  on  the  powers  of  the  government.'  Sir, 
they  have  settled  all  this  in  the  fullest  manner.  They  have  left  it 
with  the  government  itself,  in  its  appropriate  branches.  Sir,  the 
very  chief  end,  the  main  design,  for  which  the  whole  constitution 
was  framed  and  adopted,  was  to  establish  a  government,  that  should 
not  be  obliged  to  act  through  state  agency,  or  depend  on  state  opi- 
nion and  state  discretion.  The  people  had  had  quite  enough  of  that 
kind  of  government,  under  the  confederacy.  Under  that  system, 
the  legal  action — the  application  of  law  to  individuals,  belonged 
exclusively  to  the  states.  Congress  could  only  recommend — their 
acts  were  not  of  binding  force,  till  the  states  had  adopted  and  sanc- 
tioned them.  Are  we  in  that  condition  still .'  Are  we  yet  at  the 
mercy  of  state  discretion,  and  state  construction  i  Sir,  if  we  are, 
then  vain  will  be  our  attempt  to  maintain  the  constitution,  under 
which  we  sit. 

"  But,  sir,  the  people  have  wisely  provided,  in  the  constitution 
itself,  a  proper,  suitable  mode  and  tribunal  for  settling  questions  of 
constitutional  law.  There  are,  in  the  constitution,  grants  of  powers 
to  congress ;  and  restrictions  on  these  powers.  There  are,  also, 
prohibitions  on  the  states.  Some  authority  must,  therefore,  neces- 
sarily exist,  having  the  ultimate  jurisdiction  to  fix  and  ascertain 
the  interpretation  of  these  grants,  restrictions  and  prohibitions. 
The  constitution  has  itself  pointed  out,  ordained  and  established 
that  authority.  How  has  it  accomplished  this  great  and  essential 
end.'  By  declaring,  sir,  that  '■the  constitution  and  the  laws  of  the 
United  States,  made  in  pursuance  thereof,  shall,  be  the  supreme  laic 
of  the  land,  any  thing  in  the  constitution  or  laws  of  any  state  to  the 
contrary  notwithstanding .' 

"This,  sir,  was  the  first  great  step.     By  this,  the  supremacy  of 

the  constitution  and  laws  of  the  United   Stales  is  declared.     The 

people   so   will   it.     No   state  law  is  to  be  valid,  which    comes   in 

conflict  with  the  constitution,  or  any  law  of  the   United  States 

20 


230  LECTURES    ON 

"  §  392.  In  this  review  of  the  power  of  the  judicial  de- 
partment, upon  a  question  of  its  supremacy  in  the  inter- 
pretation of  the  constitution,  it  has  not  been  thought  ne- 
cessary to  rely  on  the  deliberate  judgments  of  that  depart- 
ment in  affirmance  of  it.  But  it  may  be  proper  to  add, 
that  the  judicial  department  has  not  only  constantly  exer- 
cised this  right  of  interpretation  in  the  last  resort ;  but  its 

passed  in  pursuance  of  it.  But  who  shall  decide  this  question 
of  interference?  To  whom  lies  the  last  appeal?  This,  sir,  the 
constitution  itself  decides,  also,  by  declaring,  ^  that  t It c  judicial 
power  shall  extend  to  all  cases  arising  mider  the  constitution 
and  laws  of  the  United  States.'  These  two  provisions,  sir,  co- 
ver the  whole  ground.  They  are,  in  truth,  the  keystone  of  the 
arch.  With  these,  it  is  a  constitution;  without  tliem  it  is  a 
confederacy.  In  pursuance  of  these  clear  and  express  provisions, 
congress  established,  at  its  very  first  session,  in  the  judicial  act,  a 
mode  for  carrying  them  into  full  effect,  and  for  bringing  all  ques- 
tions of  constitutional  power  to  the  final  decision  of  the  supreme 
court.  It  then,  sir,  became  a  government.  It  then  had  the  means 
of  self-protection ;  and,  but  for  this,  it  would,  in  all  probability, 
have  been  now  among  things,  which  are  past.  Having  constituted 
the  government,  and  declared  its  powers,  the  people  have  further 
said,  that  since  somebody  must  decide  on  the  extent  of  these  pow- 
ers, the  government  shall  itself  decide  ;  subject,  always,  like  other 
popular  governments,  to  its  responsibility  to  the  people.  And  now, 
sir,  I  repeat,  how  is  it,  tliat  a  state  legislature  acquires  any  power 
to  interfere  ?  Who,  or  what,  gives  them  the  right  to  say  to  the 
people,  '  We,  who  are  your  agents  and  servants  for  one  purpose,  will 
undertake  to  decide,  that  your  other  agents  and  servants,  appointed 
by  you  for  another  purpose,  have  transcended  the  authority  you  gave 
them  I'  The  reply  would  be,  I  think,  not  impertinent — '  Who  made 
you  a  judge  over  another's  servants?  To  their  own  masters  they 
stand  or  fall.' 

"  Sir,  I  deny  this  power  of  state  legislatures  altogether.  It  can- 
not stand  the  test  of  examination.  Gentlemen  may  say,  that  in  an 
extreme  case,  a  state  government  might  protect  the  people  from 
intolerable  oppression.  Sir,  in  such  a  case,  the  people  might  pro- 
tect themselves,  without  the  aid  of  the  state  governments.  Such 
a  case  warrants  revolution.  It  must  make,  when  it  comes,  a  law 
for  itself.  A  nullifying  act  of  a  state  legislature  cannot  alter  the 
case,  nor  make  resistance  any  more  lawful.  In  maintaining  these 
sentiments,  sir,  I  am  but  asserting  the  rights  of  the  people.  I  state 
what  they  have  declared,  and  insist  on  their  right  to  declare  it. 
They  have  chosen  to  repose  this  power  in  the  general  government, 
and  I  think  it  my  duty  to  support  it,  like  other  constitutional  pow- 
ers." 

See  also  1  Wilson's  Law  Lectures,  461,  4G2. — It  is  truly  surpri- 
sing, that,  Mr.  vice-president  Calhoun,  in  his  letter  of  the  28th  of 
August  1832,  to  governor  Hamilton,  (published  while  the  present 
work  was  passing  through  the  press,)  should  have  thought,  that  a 


CONSTITUTIONAL    LAW.  231 

whole  course  of  reasonings  and  operations  has  proceeded 
upon  the  ground,  that,  once  made,  the  interpretation  was 
conclusive,  as  well  upon  the  states,  as  the  people. (^•) 

"  §  393.  But  it  may  be  asked,  as  it  has  been  asked,  what 
is  to  be  the  remedy,  if  there  be  any  misconstruction  of  the 
constitution  on  the  part  of  the  government  of  the  United 
States,  or  its  functionaries,  and  any  powers  exercised  by 

proposition  merely  offered  in  the  convention,  and  referred  to  a 
committee  for  tlieir  consideration,  that  "the  jurisdiction  of  the  su- 
preme court  shall  be  extended  to  all  controversies  between  the 
United  States  and  an  individual  state,  or  the  United  States  and 
the  citizens  of  an  individual  state,"*  should,  in  connection  with 
others,  giving  a  negative  on  state  laws,  establish  the  conclusion, 
that  the  convention,  which  framed  the  constitution,  was  opposed 
to  granting  the  power  to  the  general  government,  in  any  form,  to 
exercise  any  control  wliatever  over  a  state  by  force,  veto,  or  judi- 
cial process,  or  in  any  other  form.  This  clause  for  conferring  ju- 
risdiction on  the  supreme  court  in  controversies  between  the  Uni- 
ted States  and  the  states,  must,  like  the  other  controversies  between 
states,  or  between  individuals,  referred  to  the  judicial  power,  have 
been  intended  to  apply  exclusively  to  suits  of  a  civil  nature,  respect- 
ing property,  debts,  contracts,  or  other  claims  by  the  United  States 
against  a  state  ;  and  not  to  the  decision  of  constitutional  questions 
in  the  abstract.  At  a  subsequent  period  of  the  convention,  the 
judicial  power  was  expressly  extended  to  all  cases  arising  under 
the  constitution,  lavs  and  treaties  of  the  United  States,  and  to  all 
controversies,  to  which  the  United  States  should  be  a  party, t  thus 
covering  the  whole  ground  of  a  right  to  decide  constitutional  ques- 
tions of  a  judicial  nature.  And  this,  as  the  Federalist  informs  us, 
was  the  substitute  for  a  negative  upon  state  laws,  and  the  only  one, 
which  was  deemed  safe  or  efficient.     The  Federalist,  No.  80. 

(/,)  Martin  v.  Hunter,  1  Wheat.  R.  30J,  334,  »fcc.,  342  to  348; 
Cohens  v.  The  State  of  Virginia,  6  Wheat.  R.  264,  376,  377  to  392  ; 
Id.  413  to  423;  Bank  of  Hamilton  v.  Dudley,  2  Peters's  R.  524  ; 
Ware  v.  Hijlton,  3  Dall.  11)9;  1  Cond.  R.  t)9,  112.  The  language 
of  Mr.  chief  justice  Marshall,  in  delivering  the  opinion  of  the 
court  in  Cohens  v.  Virginia,  (6  Wheat.  384  to  390,)  presents  the  ar- 
gument in  favour  of  the  jurisdiction  of  the  judicial  department  in 
a  very  forcible  manner.  "  While  weighing  arguments  drawn  from 
the  nature  of  government,  and  from  the  general  spirit  of  an  in- 
strument, and  urged  for  the  purpose  of  narrowing  the  construc- 
tion, which  the  words  of  that  instrument  seem  to  require,  it  is  pro- 
per to  place  in  the  opposite  scale  those  principles,  drawn  from  the 
same  sources,  which  go  to  sustain  the  words  in  their  full  ope- 
ration and  natural  import.  One  of  these,  which  has  been  pressed 
with  great  force  by  the  counsel  for  the  plaintiffs  in  error,  is,  that 

*  Journal  of  Convention,  20th  August,  p.  265. 
f  Journal  of  Convention,  27th  August,  p.  293. 


232  LECTURES    ON 

them,  not  warranted  by  its  true  meaning  ?  To  this  ques- 
tion a  general  answer  may  be  given  in  the  words  of  its  early 
expositors  :  '  The  same,  as  if  the  state  legislatures  should 

the  judicial  power  of  every  well  constituted  government  must  be 
co-extensive  with  the  legislative,  and  must  be  capable  of  deciding 
every  judicial  question  which  grows  out  of  the  constitution  and 
laws. 

"  If  any  proposition  may  be  considered  as  a  political  axiom,  this, 
we  think,  may  be  so  considered.  In  reasoning  upon  it,  as  an  ab- 
stract question,  there  would,  probably,  exist  no  contrariety  of  opi- 
nion respecting  it.  Every  argument,  proving  the  necessity  of  the 
department,  proves  also  the  propriety  of  giving  tliis  extent  to  it. 
We  do  not  mean  to  say,  that  the  jurisdiction  of  the  courts  of  the 
Union  should  be  construed  to  be  co-extensive  with  the  legislative, 
merely  because  it  is  fit,  that  it  should  be  so ;  but  we  mean  to  say, 
that  this  fitness  furnisiies  an  argument  in  construing  the  constitu- 
tion, which  ought  never  to  be  overlooked,  and  which  is  most  espe- 
cially entitled  to  consideration,  when  we  are  enquiring,  whether 
tiie  words  of  the  instrument,  which  purport  to  establish  this  prin- 
ciple, shall  be  contracted  for  the  purpose  of  destroying  it. 

"  The  mischievous  consequences  of  the  construction,  contended 
for  on  the  part  of  Virginia,  are  also  entitled  to  great  consideration. 
It  would  prostrate,  it  has  been  said,  the  government  and  its  laws 
at  the  feet  of  every  state  in  the  Union.  And  would  not  this  be  its 
effect .''  What  power  of  the  government  could  be  executed  by  its 
own  means,  in  any  state  disposed  to  resist  its  execution  by  a  course 
of  legislation  .'  The  laws  must  be  executed  by  individuals  acting 
within  the  several  states.  If  these  individuals  may  be  exposed  to 
penalties,  and  if  the  courts  of  the  Union  cannot  correct  the  judg- 
ments, by  which  these  penalties  may  be  enforced,  the  course  of 
the  government  may  be,  at  any  time,  arrested  by  the  will  of  one 
of  its  members.  Each  member  will  possess  a  veto  on  the  will  of 
the  whole. 

"The  answer,  which  has  been  given  to  this  argument,  does  not 
deny  its  truth,  but  insists,  that  confidence  is  reposed,  and  may  be 
safely  reposed,  in  the  state  institutions;  and  that,  if  they  siiall  ever 
become  so  insane,  or  so  wicked,  as  to  seek  tlie  destruction  of  the 
government,  they  may  accomplish  their  object  by  refusing  to  per- 
form the  functions  assigned  to  them. 

"  We  readily  concur  with  the  counsel  for  the  defendant  in  the 
declaration,  that  the  cases,  which  have  been  put,  of  direct  legisla- 
tive resistance  for  the  purpose  of  opposing  the  acknowledged  pow- 
ers of  the  government,  are  extreme  cases,  and  in  the  hope,  that 
they  will  never  occur ;  but  we  cannot  help  believing,  that  a  gene- 
ral conviction  of  the  total  incapacity  of  the  government  to  protect 
itself  and  its  laws  in  such  cases,  would  contribute  in  no  inconside- 
rable degree  to  their  occurrence. 

"  Let  it  be  admitted,  that  the  cases,  which  have  been  put,  are  ex- 
treme and  improbable,  yet  there  are  gradations  of  opposition  to 
the  laws,  far  short  of  tliose  cases,  which  might  have  a  baneful  in- 


CONSTITUTIONAL    LAW.  233 

violate  their  respective  constitutional  authorities.'  In  the 
first  instance,  if  this  should  be  by  congress,  '  the  success 
of  the  usurpation  will  depend  on  the  executive  and  judi- 

fluence  on  the  affairs  of  the  nation.  Different  states  may  entertain 
different  opinions  on  the  true  construction  of  the  constitutional 
powers  of  congress.  We  know,  that  at  one  time,  the  assumption 
of  the  debts,  contracted  by  the  several  states  during  the  war  of 
our  revolution,  was  deemed  unconstitutional  by  some  of  them. 
We  know,  too,  that  at  other  times,  certain  taxes,  imposed  by  con- 
gress, have  been  pronounced  unconstitutional.  Other  laws,  have 
been  questioned  partially,  while  thev  were  supported  by  the  great 
majority  of  the  American  people.  We  have  no  assurance,  that  we 
shall  be  less  divided,  than  we  have  been.  States  may  legislate  in 
conformity  to  their  opinions,  and  may  enforce  those  opmions  by 
penalties.  It  vvould  be  hazarding  too  much  to  assert,  that  the  ju- 
dicatures of  the  states  will  be  exempt  from  the  prejudices,  by  which 
the  legislatures  and  people  are  influenced,  and  will  constitute  per- 
fectly impartial  tribunals.  In  many  states  the  judges  are  depen- 
dent for  office  and  for  salary  on  the  will  of  the  legislature.  The 
constitution  of  the  United  States  furnishes  no  security  against  the 
universal  adoption  of  this  principle.  When  we  observe  the  im- 
portance, which  that  constitution  attaches  to  the  independence  of 
judges,  we  are  the  less  inclined  to  suppose,  that  it  can  have  in- 
tended to  leave  these  constitutional  questions  to  tribunals,  where 
this  independence  may  not  exist,  in  all  cases  where  a  state  shall 
prosecute  an  individual,  who  claims  the  protection  of  an  act  of  con- 
gress. These  prosecutions  may  take  place,  even  without  a  legis- 
lative act.  A  person,  making  a  seizure  under  an  act  of  congress, 
may  be  indicted  as  a  trespasser,  if  force  has  been  employed,  and 
of  this  a  jury  may  judge.  How  extensive  may  be  the  mischief,  if 
the  first  decisions  in  such  cases  should  be  final ! 

"  These  collisions  may  take  place  in  times  of  no  extraordinary 
commotion.  But  a  constitution  is  framed  for  ages  to  come,  and  is 
designed  to  approach  immortality,  as  nearly  as  hnman  institu- 
tions can  approach  it.  Its  course  cannot  always  be  tranquil.  It 
is  exposed  to  storms  and  tempests,  and  its  framers  must  be  unwise 
statesmen  indeed,  if  they  have  not  provided  it,  as  far  as  its  nature 
will  permit,  with  the  means  of  self-preservation  from  the  perils  it 
may  be  destined  to  encounter.  No  government  ought  to  be  so  de 
fective  in  its  organization,  as  not  to  contain  within  itself  the  means 
of  securing  the  execution  of  its  own  laws  against  other  dangers, 
than  those  which  occur  every  day.  Courts  of  justice  are  the  means 
most  usually  employed ;  and  it  is  reasonable  to  expect,  that  a  go- 
vernment should  repose  on  its  own  courts,  rather  than  on  others. 
There  is  certainly  nothing  in  the  circumstances,  under  which  our 
constitution  was  formed;  nothing  in  the  history  of  the  times  which 
would  justify  the  opinion,  that  the  confidence  reposed  in  the  states 
was  so  implicit  as  to  leave  in  them  and  their  tribunals  the  power  of 
resisting  or  defeating,  in  the  form  of  law,  the  legitimate  measures 
of  the  Union.  The  requisitions  of  congress,  under  the  confedera- 
20* 


234  LECTURES    ON 

ciary  departments,  which  are  to  expound,  and  give  effect  to 
the  legislative  acts;  and,  in  the  last  resort,  a  remedy  must 
be  obtained  from  the  people,  who  can,  by  the  election  of 

tion,  were  as  constitutionally  obligatory,  as  the  laws  enacted  by 
the  present  congress.  That  they  were  habitually  disregarded,  is  a 
fact  of  universal  notoriety.  With  the  knowledge  of  this  fact,  and 
under  its  full  pressure,  a  convention  was  assembled  to  change  the 
system.  Is  it  so  improbable,  that  they  should  confer  on  the  judi- 
cial department  the  power  of  construing  tlie  constitution  and  laws 
of  tiie  Union  in  every  case,  in  the  last  resort,  and  of  preserving 
them  from  all  violation  from  every  quarter,  so  far  as  judicial  deci- 
sions can  preserve  them,  that  this  improbability  should  essentially 
affect  the  construction  of  the  new  system  .'  We  are  told,  and  we 
arc  truly  told,  that  the  great  change,  which  is  to  give  efficacy  to 
the  present  system,  is  its  ability  to  act  on  individuals  directly,  in- 
stead of  acting  through  the  instrumentality  of  state  governments. 
Jiut,  ought  not  this  ability,  in  reason  and  sound  policy,  to  be  ap- 
plied directly  to  the  protection  of  individuals  employed  in  the  exe- 
cution of  the  laws,  as  well  as  to  their  coercion  .'  Your  laws  reach 
the  individual  without  the  aid  of  any  other  power;  why  may  they 
not  protect  him  from  punishment  for  performing  his  duty  in  exe- 
cuting them  ? 

"  The  counsel  for  Virginia  endeavour  to  obviate  the  force  of  these 
arguments  by  saying,  that  the  dangers  they  suggest,  if  not  imagi- 
nary, are  inevitable ;  that  the  constitution  can  make  no  provision 
against  them  ;  and  that,  therefore,  in  construing  that  instrument, 
they  ought  to  be  excluded  from  our  consideration.  This  state  of 
things,  they  say,  cannot  arise,  until  there  shall  be  a  disposition  so 
hostile  to  the  present  political  system,  as  to  produce  a  determina- 
tion to  destroy  it;  and,  when  that  determination  shall  be  produced, 
its  effects  will  not  be  restrained  by  parchment  stipulations.  The 
fate  of  the  constitution  will  not  then  depend  on  judicial  decisions. 
But,  should  no  appeal  be  made  to  force,  the  states  can  put  an  end 
to  tiie  government  by  refusing  to  act.  They  have  only  not  to  elect 
senators,  and  it  expires  without  a  struggle. 

"  It  is  very  true,  that,  whenever  hostility  to  the  existing  system 
shall  become  universal,  it  will  be  also  irresistible.  The  people 
made  the  constitution,  and  tlie  people  can  unmake  it.  It  is  the 
creature  of  their  will,  and  lives  only  by  their  will.  But  this  su- 
preme and  irresistible  power  to  make,  or  to  unmake,  resides  only 
in  the  whole  body  of  the  people  ;  not  in  any  sub-division  of  them. 
The  attempt  of  any  of  the  parts  to  exercise  it  is  usurpation,  and 
ought  to  be  repelled  by  those,  to  whom  the  people  have  delegated 
their  power  of  repelling  it. 

"The  acknowledged  inability  of  the  government,  then,  to  sus- 
tain itself  against  the  public  will,  and,  by  force  or  otherwise,  to 
control  the  whole  nation,  is  no  sound  argument  in  support  of  its 
constitutional  inability  to  preserve  itself  against  a  section  of  the  na- 
tion acting  in  opposition  to  the  general  will. 


CONSTITUTIONAL    LAW.  235 

more  faithful  representatives,  annul  the  acts  of  the  usurpers. 
The  truth  is,  that  this  ultimate  redress  may  be  more  con- 
fided in  against  unconstitutional  acts  of  the  federal,  than  of 
the  state  legislatures,  for  this  plain  reason,  that,  as  every 
act  of  the  former  will  be  an  invasion  of  the  rights  of  the 
latter,  these  will  ever  be  ready  to  mark  the  innovation,  to 
sound  the  alarm  to  the  people,  and  to  exert  their  local  in- 
fluence in  effecting  a  change  of  federal  representatives. 
There  being  no  such  intermediate  body  between  the  state 
legislatures  and  the  people,  interested  in  watching  the  con- 
duct of  the  former,  violations  of  the  state  constitution  are 
more  likely  to  remain  unnoticed  and  unredressed. (/) 

"  §  394.  In  the  next  place,  if  the  usurpation  should  be 
by  the  president,  an  adequate  check  may  be  generally  found, 
not  only  in  the  elective  franchise,  but  also  in  the  control- 
ling power  of  congress,  in  its  legislative  or  impeaching  ca- 
pacity, and  in  an  appeal  to  the  judicial  department.  In  the 
next  place,  if  the  usurpation  should  be  by  the  judiciary, 
and  arise  from  corrupt  motives,  the  power  of  impeachment 
would  remove  the  offenders ;  and  in  most  other  cases  the 
legislative  and  executive  authorities  could  interpose  an  ef- 
ficient barrier.  A  declaratory  or  prohibitory  law  would,  in 
many  cases,  be  a  complete  remedy.     We  have,  also,  so  far 

"  It  is  true,  that  if  all  the  states,  or  a  majority  of  them,  refuse 
to  elect  senators,  tiie  legislative  powers  of  the  Union  will  be  sus- 
pended. But  if  any  one  state  shall  refuse  to  elect  them,  the  senate 
will  not,  on  that  account,  be  the  less  capable  of  performing  all  its 
functions.  The  argument  founded  on  this  fact  would  seem  rather 
to  prove  the  subordination  of  the  parts  to  the  whole,  than  the  com- 
plete independence  of  any  one  of  them.  The  framers  of  the  con- 
stitution were,  indeed,  unable  to  make  any  provisions,  which  should 
protect  that  instrument  against  a  general  combination  of  the  states, 
or  of  the  people,  for  its  destruction;  and,  conscious  of  this  inabili- 
ty, they  have  not  made  the  attempt.  But  they  were  able  to  pro- 
vide against  the  operation  of  measures  adopted  in  any  one  state, 
whose  tendency  might  be  to  arrest  the  execution  of  the  laws,  and 
this  it  was  the  part  of  true  wisdom  to  attempt.  We  think  they 
have  attempted  it." 

See  also  M'CuUoch  v.  Maryland,  (4  Wheat.  316,  405,  406.)  See 
also  the  reasoning  of  Mr.  chief  justice  Jay,  in  Chlsholm  v.  Geor- 
gia, (2  Dall.  419,  S.  C.  2  Peterss  Cond.  R.  635,  670  to  675.)  Os- 
horn  V.  Bank  of  the  United  States,  (9  Wheat.  738,  81 S,  819;)  and 
Gibbons  v.  Ogdcn,  (9  Wheat.  1,  210.) 

(l)  The  Federalist,  No.  44  ;  1  Wilson's  Law  Lectures,  461,  462 ; 
Dane's  App.  §  58,  p.  68. 


236  LECTURES    ON 

at  least  as  a  conscientious  sense  of  the  obligations  of  duty, 
sanctioned  by  an  oath  of  office,  and  an  indissoluble  respon- 
sibility to  the  people  for  the  exercise  and  abuse  of  power, 
on  the  part  of  different  departments  of  the  government, 
can  influence  human  minds,  some  additional  guards  against 
known  and  deliberate  usurpations ;  for  both  are  provided 
for  in  the  constitution  itself  '  The  wisdom  and  the  dis- 
cretion of  congress,  (it  has  been  justly  observed,)  their 
identity  with  the  people,  and  the  influence,  which  their 
constituents  possess  at  elections,  are,  in  this,  as  in  many 
other  instances,  as,  for  example,  that  of  declaring  war,  the 
sole  restraints  ;  on  this  they  have  relied,  to  secure  them 
from  abuse.  They  are  the  restraints,  on  which  the  people 
must  often  solely  rely  in  all  representative  governments. '(m) 
"§  395.  But  in  the  next  place,  (and  it  is  that,  which 
would  furnish  a  case  of  most  difficulty  and  danger,  though 
it  may  fairly  be  presumed  to  be  of  rare  occurrence,)  if  the 
legislative,  executive  and  judicial  departments  should  all 
concur  in  a  gross  usurpation,  there  is  still  a  peaceable  re- 
medy provided  by  the  constitution.  It  is  by  the  power  of 
amendment,  which  may  always  be  applied  at  the  will  of 
three  fourths  of  the  states.  If,  therefore,  there  should  be 
a  corrupt  co-operation  of  three  fourths  of  the  states  for 
permanent  usurpation,  (a  case  not  to  be  supposed,  or  if 
supposed,  it  differs  not  at  all  in  principle  or  redress  from 
the  case  of  a  majority  of  a  state  or  nation  having  the  same 
intent,)  the  case  is  certainly  irremediable  under  any  known 
forms  of  the  constitution.  The  states  may  now  by  a  con- 
stitutional amendment,  with  few  limitations,  change  the 
whole  structure  and  powers  of  the  government,  and  thus 
legalize  any  present  excess  of  power.  And  the  general 
right  of  a  society  in  other  cases  to  change  the  government 
at  the  will  of  a  majority  of  the  whole  people,  in  any  man- 
ner, that  may  suit  its  pleasure,  is  undisputed,  and  seems  in- 
disputable. If  there  be  any  remedy  at  all  for  the  minority 
in  such  cases,  it  is  a  remedy  never  provided  for  by  human 
institutions.     It  is  by  a  resort  to  the  ultimate  right  of  all 

(m)  Gibbons  v.  Ogdcn,  9  Wheat.  R.  1,  197.— See  also,  on  the 
same  subject,  the  observations  of  Mr.  justice  Johnson,  in  deliver- 
ing the  opinion  of  the  court,  in  Anderson  v.  Dunn,  6  Wheat.  R. 
204,  226. 


CONSTITUTIONAL    LAW,  237 

human  beings  in  extreme  cases  to  resist  oppression,  and 
to  apply  force  against  ruinous  injustice. (n) 

(ji)  See  Webster's  Speeches,  p.  408,  409;  1  Black.  Comm.  161, 
162.     See  also  1  Tucker's  Black.  Comm.  App.  73  to  75. 

The  following  is  the  letter  of  Mr.  Madison  to  Mr.  Edward  Eve- 
rett, dated  August  1830,  referred  to  by  judge  Story  in  his  Com- 
mentaries, and  published  as  a  note  to  page  375,  of  the  first  volume  : 

"  In  order  to  understand  the  true  character  of  the  constitution 
of  the  United  States,  the  error,  not  uncommon,  must  be  avoided, 
of  viewing  it  through  the  medium,  either  of  a  consolidated  go- 
vernment, or  of  a  confederated  government,  whilst  it  is  neither 
the  one,  nor  the  other  ;  but  a  mixture  of  both.  And  having,  in  no 
model,  the  similitudes  and  analogies  applicable  to  other  systems  of 
government,  it  must,  more  than  any  other,  be  its  own  interpreter 
according  to  its  text  and  the  facts  of  the  case. 

"  From  these  it  will  be  seen,  that  the  characteristic  peculiarities 
of  the  constitution  are,  1,  the  mode  of  its  formation;  2,  the  divi- 
sion of  the  supreme  powers  of  government  between  the  states  in 
their  united  capacity,  and  the  states  in  their  individual  capacities. 

"1.  It  was  formed,  not  by  the  governments  of  the  component 
states,  as  the  federal  government,  for  which  it  was  substituted  was 
formed.  Nor  was  it  formed  by  a  majority  of  the  people  of  the  Uni 
ted  States,  as  a  single  community,  in  the  manner  of  a  consolidated 
government. 

"  It  was  formed  by  the  states,  that  is,  by  the  people  in  each  of 
the  states,  acting  in  their  highest  sovereign  capacity  ;  and  formed 
consequently,  by  the  same  authority,  which  formed  the  state  con- 
stitutions. 

"  Being  thus  derived  from  the  same  source  as  the  constitutions 
of  the  states,  it  has,  within  each  state,  the  same  authority,  as  the 
constitution  of  the  state;  and  is  as  much  a  constitution,  in  the 
strict  sense  of  the  term,  within  its  prescribed  sphere,  as  the  con- 
stitutions of  the  states  are,  within  their  respective  spheres  :  but 
with  this  obvious  and  essential  difference,  that  being  a  compact 
among  the  states  in  their  lushest  sovereign  capacity,  and  constituting 
the  people  thereof  one  people  for  certain  purposes,  it  cannot  be  al- 
tered, or  annulled  at  the  will  of  the  states  individually,  as  the  con- 
stitution of  a  state  may  be  at  its  individual  will. 

"2.  And  that  it  divides  the  supreme  powers  of  government,  be- 
tween the  government  of  the  United  States,  and  the  governments 
of  the  individual  states,  is  stamped  on  the  face  of  the  instrument; 
the  powers  of  war  and  of  taxation,  of  commerce  and  of  treaties, 
and  other  enumerated  powers  vested  in  the  government  of  the 
United  States,  being  of  as  high  and  sovereign  a  character,  as  any 
of  the  powers  reserved  to  the  state  governments. 

"  Nor  is  the  government  of  the  United  States,  created  by  the 
constitution,  less  a  government  in  the  strict  sense  of  the  term, 
within  the  sphere  of  its  powers,  than  the  governments  created  by 


238  LECTURES    ON 

the  constitutions  of  the  states  are,  within  their  several  spheres.  It 
is  like  them,  organized  into  legislative,  executive  and  judiciary  de- 
partments. It  operates,  like  them,  directly  on  persons  and  things. 
And,  like  them,  it  has  at  command  a  physical  force  for  executing 
the  powers  committed  to  it.  The  concurrent  operation  in  certain 
cases  is  one  of  the  features  marking  the  peculiarity  of  the  system. 

"  Between  these  different  constitutional  governments,  the  one 
operating  in  all  the  states,  the  others  operating  separately  in  each, 
with  the  aggregate  powers  of  government  divided  between  them, 
it  could  not  escape  attention,  that  controversies  would  arise  con- 
cerng  the  boundaries  of  jurisdiction  ;  and  that  some  provision 
ought  to  be  made  for  such  occurrences.  A  political  system,  that 
does  not  provide  for  a  peaceable  and  authoritative  termination  of 
occurring  controversies,  would  not  be  more  than  the  shadow  of  a 
government ;  the  object  and  end  of  a  real  government  being,  the 
substitution  of  law  and  order  for  uncertainty,  confusion  and  vio- 
lence. 

"That to  have  left  a  final  decision,  in  such  cases,  to  each  of  the 
states,  then  thirteen,  and  already  twenty-four,  could  not  fail  to 
make  the  constitution  and  laws  of  the  United  States  different  in 
different  states,was  obvious  ;  and  not  less  obvious,  that  this  diversity 
of  independent  decisions  must  altogether  distract  the  government 
of  the  Union,  and  speedily  put  an  end  to  the  Union  itself.  A  uni- 
form authority  of  the  laws,  is  in  itself  a  vital  principle.  Some  of 
the  most  important  laws  could  not  be  partially  executed.  They 
must  be  executed  in  all  the  states,  or  they  could  be  duly  executed 
in  none.  An  impost,  or  an  excise,  for  example,  if  not  in  force  in 
some  states,  would  be  defeated  in  others.  It  is  well  known,  that 
this  was  among  the  lessons  of  experience,  which  had  a  primary  in- 
fluence in  bringing  about  the  existing  constitution.  A  loss  of  its 
general  authority  would  moreover  revive  the  exasperating  ques- 
tions between  the  states  holding  ports  for  foreign  commerce,  and 
the  adjoining  states  without  them ;  to  which  are  now  added,  all 
the  inland  states,  necessarily  carrying  on  their  foreign  commerce 
through  other  states. 

"  To  have  made  the  decisions  under  the  authority  of  the  indivi- 
dual states,  co-ordinate,  in  all  cases,  with  decisions  under  the  au- 
thority of  the  United  States,  would  unavoidably  produce  collisions 
incompatible  with  the  peace  of  society,  and  with  that  regular  and 
efficient  administration,  which  is  of  the  essence  of  free  govern- 
ments. Scenes  could  not  be  avoided,  in  which  a  ministerial  officer 
of  the  United  States,  and  the  correspondent  officer  of  an  indivi- 
dual state,  would  have  rencounters  in  executing  conflicting  de- 
crees ;  the  result  of  which  would  depend  on  the  comparative  force 
of  the  local  posses  attending  them  ;  and  that,  a  casualty  depend- 
ing on  the  political  opinions  and  party  feelings  in  different  states. 

"  To  have  referred  every  clashing  decision,  under  the  two  autho- 
rities, for  a  final  decision,  to  the  states  as  parties  to  the  constitu- 
tion, would  be  attended  with  delays,  with  inconveniences,  and  with 
expenses,  amounting  to  a  prohibition  of  the  expedient;  not  to 
mention  its  tendency  to  impair  the  salutary  veneration  for  a  sys- 
tem requiring  such  frequent  interpositions,  nor  the  delicate  ques- 


CONSTITUTIONAL    LAW.  239 

tions,  which  might  present  themselves  as  to  the  form  of  stating 
the  appeal,  and  as  to  the  quorum  for  deciding  it. 

"To  have  trusted  to  negotiation  for  adjusting  disputes  between 
the  government  of  the  United  States  and  the  state  governments, 
as  between  independent  and  separate  sovereignties,  would  have 
lost  sight  altogether  of  a  constitution  and  government  for  the 
Union  ;  and  opened  a  direct  road  from  a  failure  of  that  resort,  to 
the  ultima  ratio  between  nations  wholly  independent  of,  and  alien 
to  each  other.  If  the  idea  had  its  origin  in  the  process  of  adjust- 
ment between  separate  brandies  of  the  same  government,  the  ana- 
logy entirely  fails.  In  the  case  of  disputes  between  independent 
parts  of  the  same  government,  neither  part  being  able  to  consum- 
mate its  will,  nor  the  government  to  proceed  without  a  concur- 
rence of  the  parts,  necessity  brings  about  an  accommodation.  In 
disputes  between  a  state  government,  and  the  government  of  the 
United  States,  the  case  is  practically,  as  well  as  theoretically  dif- 
ferent; each  party  possessing  all  the  departments  of  an  organized 
government,  legislative,  executive  and  judiciary  ;  and  having  each 
aphyscial  force  to  support  its  pretensions.  Although  the  issue  of 
negotiation  might  sometimes  avoid  this  extremity,  how  often  would 
it  happen  among  so  many  states,  that  an  unaccommodating  spirit 
in  some  would  render  that  resource  unavailing  ?  A  contrary  sup- 
position would  not  accord  with  a  knowledge  of  human  nature,  or 
the  evidence  of  our  own  political  history. 

"  The  constitution,  not  relying  on  any  of  the  preceding  modifi- 
cations, for  its  safe  and  successful  operation,  has  expressly  declar- 
ed, on  the  one  hand,  1,  'that  the  constitution,  and  the  laws  made 
in  pursuance  thereof,  and  all  treaties  made  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land  ;  2,  that 
the  judges  of  every  state  shall  be  bound  thereby,  any  thing  in  the 
constitution  and  laws  of  any  state  to  the  contrary  notwithstanding  ; 
3,  that  the  judicial  power  of  the  United  States  shall  extend  to  all 
cases  in  law  and  equity  arising  under  the  constitution,  the  laws  of 
the  United  States,  and  treaties  made  under  their  authority,'  &c. 

"  On  the  other  hand,  as  a  security  of  the  rights  and  powers  of 
the  states,  in  their  individual  capacities,  against  an  undue  prepon- 
derance of  the  powers  granted  to  the  government  over  them  in 
their  united  capacity,  the  constitution  has  relied  on,  (1,)  the  respon- 
sibility of  the  senators  and  representatives  in  the  legislature  of  the 
United  States  to  the  legislatures  and  people  of  the  states ;  (2,)  the 
responsil)ility  of  the  president  to  the  people  of  the  United  States ; 
and  (3,)  the  liability  of  the  executive  and  judicial  functionaries  of 
the  United  States  to  impeachment  by  the  representatives  of  the 
people  of  the  states,  in  one  branch  of  the  legislature  of  the  United 
States,  and  trial  by  the  representatives  of  the  states,  in  the  other 
branch  :  the  state  functionaries,  legislative,  executive  and  judicial, 
being,  at  the  same  time,  in  their  appointment  and  responsibilty, 
altogether  independent  of  the  agency  or  authority  of  the  United 
States. 

"  How  far  this  structure  of  the  government  of  the  United  States 
is  adequate  and  safe  for  its  objects,  time  alone  can  absolutely  de- 
termine.    Experience  seems  to  have  shewn,  that  whatever  may 


240  LECTURES    ON 

grow  out  of  future  stages  of  our  national  career,  there  is,  as  yet,  a 
sufficient  control,  in  the  popular  will,  over  the  executive  and  lejris- 
lative  departments  of  the  government.  When  the  alien  and  sedi- 
tion laws  were  passed,  in  contravention  to  the  opinions  and  feelings 
of  the  community,  the  first  elections,  that  ensued,  put  an  end  to 
them.  And  whatever  may  have  been  the  character  of  other  acts, 
in  the  judgment  of  many  of  us,  it  is  but  true,  that  they  have  ge- 
nerally accorded  with  the  views  of  a  majority  of  the  states  and  of 
the  people.  At  the  present  day  it  seems  well  understood,  that  the 
laws  which  have  created  most  dissatisfaction,  have  had  a  like  sanc- 
tion without  doors:  and  that,  whether  continued,  varied,  or  repeal- 
ed, a  like  proof  will  be  given  of  the  sympathy  and  responsibility  of 
the  representative  body  to  the  constituent  body.  Indeed,  the  great 
complaint  now  is,  against  the  results  of  this  sympathy  and  respon- 
sibility in  the  legislative  policy  of  the  nation. 

"  With  respect  to  the  judicial  power  of  the  United  States,  and 
the  authority  of  the  supreme  court  in  relation  to  the  boundary  of 
jurisdiction  between  the  federal  and  the  state  governments,  1  may 
be  permitted  to  refer  to  the  thirty-ninth  number  of  the  Federalist* 
for  the  light,  in  which  the  subject  was  regarded  by  its  writer  at 
the  period,  when  the  constitution  was  depending;  and  it  is  be- 
lieved that  the  same  was  the  prevailing  view  then  taken  of  it ;  that 
the  same  view  has  continued  to  prevail ;  and  that  it  does  so  at  this 
time,  notwithstanding  the  eminent  exceptions  to  it. 

"But  it  is  perfectly  consistent  with  the  concession  of  this  power 
to  the  supreme  court,  in  cases  falling  within  the  course  of  its  func- 
tions, to  maintain,  that  the  power  has  not  always  been  rightly 
exercised.  To  say  nothing  of  the  period,  happily  a  short  one,  when 
judges  in  their  seats  did  not  abstain  from  intemperate  and  party 
harangues,  equally  at  variance  with  their  duty  and  their  dignity; 
there  have  been  occasional  decisions  from  the  bench,  which  have 
incurred  serious  and  extensive  disapprobation.  Still  it  would  seem, 
that,  with  but  few  exceptions,  the  course  of  the  judiciary  has  been 
hitherto  sustained  by  the  prominent  sense  of  the  nation. 

"Those  who  have  denied,  or  doubted  tlie  supremacy  of  the  ju- 
dicial power  of  the  United  States,  and  denounce  at  the  same  time 
a  nullifying  power  in  a  state,  seem  not  to  have  sufficiently  advert- 
ed to  the  utter  inefficiency  of  a  supremacy  in  a  law  of  the  land, 
without  a  supremacy  in  the  exposition  and  execution  of  the  law  : 
nor  to  the  destruction  of  all  equipoise  between  the  federal  govern- 
ment and  the  state  governments,  if,  whilst  the  functionaries  of  the 
federal  government  arc  directly  or  indirectly  elected  by,  and  re- 
sponsible to  the  states,  and  the  functionaries  of  the  states  are  in 
their  appointment  and  responsibility  wholly  independent  of  the 
United  States,  no  constitutional  control  of  any  sort  belonged  to 
the  United  States  over  the  states.  Under  such  an  organization,  it 
is  evident,  that  it  would  be  in  the  power  of  the  states,  individually, 

[*  "  It  is  true,  that  in  controversies  relating  to  the  boundary  between  the  two 
jurisdictions,  the  tribunal  which  is  ultimately  to  decide  is  to  he  established  under  the 
general  irovernmcnt.  !?oni("  such  tribunal  is  (^learly  essential  to  prevent  an  appeal 
to  the  sword  and  a  dissolution  of  the  compact,  and  that  it  ought  to  be  establish- 
ed under  the  general  rather  than  under  the  local  governments."    Fed.  No.  39.] 


CONSTITUTIONAL    LAW.  241 

to  pass  unauthorized  laws,  and  to  carry  them  into  complete  etFect, 
any  thing  in  the  constitution  and  laws  of  the  United  States  to  the 
contrary  notwithstanding.  This  would  be  a  nullifying  power  in 
its  plenary  character;  and  whether  it  had  its  final  efi'ect,  through 
the  legislative,  executive  or  judiciary  organ  of  the  state,  would  be 
equally  fatal  to  the  constituted  relation  between  the  two  govern- 
ments. 

"  Should  the  provisions  of  the  constitution  as  here  reviewed,  be 
found  not  to  secure  the  government  and  rights  of  the  states,  against 
usurpations  and  abuses  on  the  part  of  the  United  States,  the  final 
resort  within  the  purview  of  the  constitution,  lies  in  an  amend- 
ment of  the  constitution,  according  to  a  process  applicable  by  the 
states. 

"And  in  the  event  of  a  failure  of  every  constitutional  resort, 
and  an  accumulation  of  usurpations  and  abuses,  rendering  passive 
obedience  and  non-resistance  a  greater  evil,  than  resistance  and  re- 
volution, there  can  remain  but  one  resort,  the  last  of  all;  an  ap- 
peal from  the  cancelled  obligations  of  the  constitutional  compact, 
to  original  rights  and  the  law  of  self-preservation.  This  is  the  ulti- 
ma ratio  under  all  governments,  whether  consolidated,  confedera- 
ted, or  a  compound  of  both;  and  it  cannot  be  doubted,  that  a  sin- 
gle member  of  the  Union,  in  the  extremity  supposed,  but  in  that 
only,  would  have  a  right,  as  an  extra  and  ultra  constitutional  right, 
to  make  the  appeal. 

"  This  brings  us  to  the  expedient  lately  advanced,  which  claims 
for  a  single  state  a  right  to  appeal  against  an  exercise  of  power  by 
the  government  of  the  United  States,  decided  by  the  state  to  be 
unconstitutional,  to  the  parties  to  the  constitutional  compact ;  the 
decision  of  the  state  to  have  the  effect  of  nullifying  the  act  of  the 
government  of  the  United  States,  unless  the  decision  of  the  state 
be  reversed  by  three  fourths  of  the  parties. 

"  The  distinguished  names  and  high  authorities,  which  appear 
to  have  asserted,  and  given  a  practical  scope  to  this  doctrine,  en- 
title it  to  a  respect, which  it  might  be  difficult  otherwise  to  feel  for  it. 

"  If  the  doctrine  were  to  be  understood  as  re(]uiring  the  three 
fourths  of  the  states  to  sustain,  instead  of  tliat  proportion  to  re- 
verse the  decision  of  the  appealing  state,  the  decision  to  be  with- 
out effect  during  the  appeal,  it  would  be  sufficient  to  remark,  that 
this  extra-constitutional  course  might  well  give  way  to  that  mark- 
ed out  by  the  constitution,  which  authorizes  two  thirds  of  the  states 
to  institute,  and  three  fourths  to  effectuate  an  amendment  of  the 
constitution,  establishing  a  permanent  rule  of  the  highest  authori- 
ty, in  place  of  an  irregular  precedent  of  construction  only. 

"  But  it  is  understood,  that  the  nullifying  doctrine  imports, 
that  the  decision  of  the  state  is  to  be  presumed  valid,  and  tiiat  it 
overrules  the  law  of  the  United  States,  unless  overruled  by  three 
fourths  of  the  states. 

"  Can  more  be  necessary  to  demonstrate  the  inadmissibility  of 
such  a  doctrine,  than,  that  it  puts  it  in  the  power  of  the  smallest 
fraction  over  one  fourth  of  the  United  States,  that  is,  of  seven 
states  out  of  twenty-four,  to  give  the  law,  and  even  the  constitu- 

21 


242       LECTURES  ON  CONSTITUTIONAL  LAW. 

tion  to  seventeen  states,  each  of  the  seventeen  having,  as  parties 
to  the  constitution,  an  equal  right  with  each  of  the  seven,  to  ex- 
pound it,  and  to  insist  on  the  exposition  ?  That  the  seven  might,  in 
particular  instances  be  right,  and  the  seventeen  wrong,  is  more 
than  possible.  But  to  establish  a  positive  and  permanent  rule  giv- 
ing such  a  power,  to  such  a  minority,  over  such  a  majority,  would 
overturn  the  first  principle  of  free  government,  and  in  practice  ne- 
cessarily overturn  the  government  itself. 

"  It  is  to  be  recollected,  that  the  constitution  was  proposed  to 
the  people  of  the  states  as  a  ivholc,  and  unanimously  adopted  by 
the  states  as  a  icholc,  it  being  a  part  of  the  constitution,  that  not 
less  than  three  fourths  of  the  states  should  be  competent  to  make 
any  alteration  in  what  had  been  unanimousl}'  agreed  to.  So  great 
is  the  caution  on  this  point,  that  in  two  cases  where  peculiar  in- 
terests were  at  stake,  a  proportion  even  of  three  fourths  is  distrust- 
ed, and  unanimity  required  to  make  an  alteration. 

"  When  the  constitution  was  adopted  as  a  whole,  it  is  certain, 
that  there  were  many  parts,  which,  if  separately  proposed,  would 
have  been  promptly  rejected.  It  is  far  from  impossible,  that  every 
part  of  a  constitution  might  be  rejected  by  a  majority,  and  yet 
taken  together  as  a  whole,  be  unanimously  accepted.  Free  consti- 
tutions will  rarely,  if  ever,  be  formed,  without  reciprocal  conces- 
sions;  without  articles  conditioned  on,  and  balancing  each  other. 
Is  there  a  constitution  of  a  single  state  out  of  the  twenty-four, 
that  would  bear  the  experiment  of  having  its  component  parts  sub- 
mitted to  the  people,  and  separately  decided  on  .' 

"  What  tlie  fate  of  the  constitution  of  the  United  States  would 
be,  if  a  small  proportion  of  the  states  could  expunge  parts  of  it 
particularly  valued  by  a  large  majority,  can  have  but  one  answer. 

"The  difficulty  is  not  removed  by  limiting  the  doctrine  to  cases 
of  construction.  How  many  cases  of  that  sort,  involving  cardinal 
provisions  of  the  constitution,  liave  occurred  .'  How  many  now 
exist  ?  How  many  may  hereafter  spring  up  ?  How  many  might  be 
ingeniously  created,  if  entitled  to  the  privilege  of  a  decision  in  the 
mode  proposed. 

"  Is  it  certain,  that  the  principle  of  that  mode  would  not  reach 
further  than  is  contemplated .'  If  a  single  state  can,  of  right,  re- 
quire three  fourths  of  its  co-states  to  overrule  its  exposition  of  the 
constitution,  because  that  proportion  is  authorized  to  amend  it, 
would  the  plea  be  less  plausible,  that,  as  the  constitution  was  una- 
nimously established,  it  ought  to  be  unanimously  expounded  ? 

"  The  reply  to  all  such  suggestions,  seems  to  be  unavoidable  and 
irresistible  ;  that  the  constitution  is  a  compact ;  that  its  text  is  to 
be  expounded,  according  to  the  provisions  for  expounding  it — 
making  a  part  of  the  compact;  and  that  none  of  the  parties  can 
rightfully  renounce  the  expounding  provision  more  than  any  other 
part.  When  such  a  right  accrues,  as  may  accrue,  it  must  grow 
out  of  abuses  of  the  compact  releasing  the  sufferers  from  their 
fealty  to  it." 


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